This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 26

• Use of anonymous witness testimony without measures to compensate for the handicaps caused to the defence by the lack of a direct confrontation with the witness.
• Judicial declaration of paternity based, among other factors, on a refusal to undergo genetic testing was not contrary to the Convention.
• Case concerning legislation banning former KGB employees from working in the private sector.
• Construction of a motorway: the refusal to grant compensation for the fall in value of an adjoining property was not contrary to the Convention

Use of anonymous witness testimony without measures to compensate for the handicaps caused to the defence by the lack of a direct confrontation with the witness - case of Balta and Demir v. Turkey - violation of Article 6 § 1 (right to a fair trial) taken in conjunction with Article 6 § 3 (d) (right to examine witnesses) of the European Convention on Human Rights - The case concerned the applicants’ conviction for membership of an illegal organisation, on the basis of statements by an anonymous witness whom the applicants were unable to question at any stage of the proceedings. The Court observed that the applicants and their lawyers had not had the opportunity at any stage in the proceedings to question the anonymous witness and to cast doubt on his credibility. The Court found that the domestic courts had not implemented the procedural safeguards provided for by Turkish law, in cases involving the use of anonymous witness testimony, in order to counterbalance the handicap to the defence arising from the lack of a direct confrontation with the witness. It reiterated that any measure restricting the rights of the defence had to be strictly necessary; if less restrictive measures could suffice then those measures should always be applied.

A judicial declaration of paternity based, among other factors, on a refusal to undergo genetic testing was not contrary to the Convention - case of Canonne v. France - application inadmissible - In this case, the applicant, Mr Canonne, complained about the fact that the domestic courts had inferred his paternity from his refusal to submit to the genetic tests ordered by them. The Court held that the domestic courts had not exceeded the room for manoeuvre (“wide margin of appreciation”) available to them when they took into account Mr Canonne’s refusal to submit to court-ordered genetic testing and declared him the father of Eléonore P., and in giving priority to the latter’s right to respect for private life over that of Mr Canonne.

Case concerning legislation banning former KGB employees from working in the private sector - case of Sidabras and Others v. Lithuania - no violation of Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights, on account of the first two applicants, Mr Sidabras and Mr Džiautas, not being able to obtain employment in the private sector, and a violation of Article 14, taken in conjunction with Article 8 of the European Convention, on account of the third applicant, Mr Rainys, not being able to obtain employment in the private sector - The three applicants, formerly a tax inspector, a prosecutor and a lawyer in a private telecommunications company, complained about Lithuania’s failure to repeal legislation (“the KGB Act”2) banning former KGB employees from working in certain spheres of the private sector, despite ECtHR judgments in their favour in 2004 and 2005. The Court found in particular that neither Mr Sidabras nor Mr Džiautas had plausibly demonstrated that they had been discriminated against after the ECtHR judgments in their case. Mr Sidabras had not provided any particular information as to who had refused to employ him as a result of restrictions under the relevant legislation, or when. Nor did the Court see anything to contradict the domestic courts’ conclusion in Mr Sidabras’ case that he had remained unemployed because he lacked the necessary qualifications. As concerned Mr Džiautas, he had himself acknowledged that he was a trainee lawyer as of 2006 and that he had never attempted to obtain other private sector jobs. However, as concerned Mr Rainys, the Court was not convinced that the Government had demonstrated that the domestic courts’ explicit reference to the KGB Act – namely, the fact that Mr Rainys’ reinstatement to his job could not be resolved favourably while the KGB Act was still in force – had not been the decisive factor forming the legal basis on which his claim for reinstatement in the telecommunications company had been rejected.

JOINT CONCURRING OPINION OF JUDGES SPANO AND KJØLBRO

"1.  The present case raises an important issue concerning Article 46 of the Convention in the context of an individual application lodged with the Court that is a follow-up to an earlier judgment finding a violation of the Convention. (-)

13.  Therefore, and to conclude, the Court should, in our view, have stated clearly that Article 46 of the Convention does not confer assertable rights on individuals that may be invoked before the Court in an individual application. We admit that this would entail a departure from Emre, but it would, in our view, be in accordance with the wording and purpose of Article 46 of the Convention and the Court’s case-law."

Construction of a motorway: the refusal to grant compensation for the fall in value of an adjoining property was not contrary to the Convention - case of Couturon v. France - No violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights - In this case, the applicant, Mr Couturon, complained about the failure to award compensation for the fall in the value of his property arising from the construction of the A89 motorway nearby. The Court held, in particular, that France had a lot of room for manoeuvre (“a wide margin of appreciation”) in this case, given that it concerned the implementation of regional planning policy, where the community’s general interest was pre-eminent. It also considered that Mr Couturon had received a fair hearing of his case, in that the French courts had duly examined his arguments concerning the depreciation of his property following the motorway’s construction.

Texts are based on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.