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ANNUAL REPORT

European Court of Human Rights

2016

ANNUAL REPORT

European Court of Human Rights

2016

English edition

of Human Rights, 2017

ISBN 978-92-871-9862-4

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Report 2016 of the European Court of

Human Rights, Council of Europe”

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Layout and cover design:

Publications Unit, ECHR

Printed in France, March 2017

VALBLOR Illkirch 2015030315

Table of Contents

FOREWORD

THE COURT IN 2016

SPEECHES

Guido Raimondi

Andrzej Rzepliński

OVERVIEW OF THE COURT’S CASE-LAW

Jurisdiction and admissibility

“Core” rights

Procedural rights

Other rights and freedoms

Other Convention provisions

BRINGING THE CONVENTION HOME

Dissemination of the Court’s case-law

Training of legal professionals

General outreach

Appendix

JUDICIAL ACTIVITIES

Grand Chamber

Sections

Single-judge formation

Composition of the Court

Composition of the Sections

The Plenary Court

STATISTICS

Events (2015-16)

Pending cases at 31 December 2016 (by respondent States)

Pending cases at 31 December 2016 (main respondent States)

Court’s workload by state of proceedings and application type at

31 December 2016

Violations by subject matter (2016)

Applications allocated to a judicial formation (2001-16)

Judgments (2001-16)

Allocated applications by State and by population (2013-16)

Violations by Article and by respondent State (2016)

Violations by Article and by respondent State (1959-2016)

THE YEAR IN PICTURES

162

169

170

175

176

178

181

182

183

185

188

191

192

193

194

195

196

197

198

200

202

205

Annual Report 2016

Foreword

Page 5

Foreword

The Court continued its efforts to reduce

the backlog of cases, but the real challenge

remains the Chamber cases.

n 2016 the Court continued its efforts to reduce the backlog of

cases. While the single-judge cases have been virtually eliminated,

and this is a welcome development, the real challenge facing the

Court continues to be the Chamber cases, which currently total almost

28,500, including 6,000 priority cases. At the end of 2016 the number of

cases pending before the Court was in the region of 80,000. This is a far

cry from the 160,000 cases that were pending in 2011, but there is no

doubt that we must continue our efforts and that the situation remains

very fragile. It should be pointed out that the number of applications

allocated increased by more than 30% in 2016. This was the result of the

situation in various countries, relating in particular to systemic problems

with regard to conditions of detention. Although these cases concern

only a limited number of countries, they are naturally regarded as a

priority since they come under Article 3 of the Convention. We are all

aware that there is no magic formula for dealing with these situations,

either in the countries concerned, for whom this entails a significant

financial outlay, or in Strasbourg.

Furthermore, the crises occurring in Europe inevitably have an impact

on the number of cases brought before the Court. For instance, as 2016

draws to a close we are seeing a very large number of applications from

Turkey. Whatever the eventual outcome of these applications, the Court

will have to process and adjudicate them, which will add to its workload

in the months ahead.

2015 saw the launch of a network for the exchange of information on

the case-law of the European Convention on Human Rights (the Superior

Courts Network, or SCN). This vital initiative, aimed at promoting the

mutual exchange of information between our Court and the highest

national courts, started with a test period involving the French courts.

The results were conclusive, and twenty-three Superior Courts from

seventeen States have now joined the Network. This success is a source

of satisfaction.

Annual Report 2016

Foreword

Page 6

Indeed, “network” appears to have been one of the keywords for

2016. The number of networks is growing and they play a very useful

role. For instance, we received a visit from the Network of the Presidents

of the Supreme Judicial Courts of the European Union, with whom we

maintain a regular dialogue. In November the Court played host to the

highest German-speaking courts. We are delighted that the highest-

ranking courts in Germany, Austria, Switzerland and Liechtenstein chose

to hold their two-yearly meeting at the Strasbourg Court. We were also

joined by the President of the Court of Justice of the European Union

and the German-speaking judges of the Luxembourg Court. In that

connection, 2016 saw the resumption of regular meetings between

the two European courts. The last meeting prior to that had been in

November 2013, and the resumption of this tradition of dialogue is

to be welcomed. In addition, a delegation from our Court travelled to

Geneva on 1 July 2016 for a working meeting with the United Nations

Human Rights Committee. These, too, are useful and important contacts

between the respective jurisdictions of the Council of Europe and the

UN system.

In the sphere of communication, we have continued our efforts

with the publication of five new Factsheets on the Court’s case-law.

These cover important issues such as the right not to be tried or

punished twice, gender equality, austerity measures, mass surveillance

and surveillance in the workplace. Sixty Factsheets are now available

which provide readers with a rapid overview of the case-law. They are

updated regularly.

The Court produced four new case-law guides and in cooperation

with the European Union Agency for Fundamental Rights launched

a fifth European law Handbook, relating to access to justice. It also

produced a new film for the general public which explains the workings

of the Court and the issues it faces. In conjunction with the HELP

programme, it made available training videos providing an overview of

the Court’s case-law in matters relating to asylum and terrorism.

Last but not least, the Court came to the end of its four-year project

to translate key case-law into select languages. Some 3,500 translations

were produced with the financial support of the Human Rights Trust

Fund. When added to the 16,500 translations obtained from States and

other sources, some 20,000 texts in over thirty languages other than

English and French are now available in the HUDOC database.

I could not conclude this foreword without mentioning that in

2016 the European Court of Human Rights was awarded the Treaties

of Nijmegen Medal. This award is conferred every two years on an

Annual Report 2016

Foreword

Page 7

international personality or body in recognition of their contribution to

the development of Europe. It recalls the fact that the Nijmegen Peace

Treaties, which put an end to several wars on European soil, were among

the first examples of pan-European cooperation. I was proud to travel to

Nijmegen to accept, on behalf of the European Court of Human Rights,

this prestigious prize which testifies to the fact that the Court’s work,

often carried out away from the limelight, is recognised and acclaimed.

In these difficult times for Europe and the world, an award such as

this spurs us on in our mission to serve the cause of human rights on

our continent.

Guido Raimondi

President of the European Court of

Human Rights

Annual Report 2016

The Court in 2016

Page 9

Chapter 1

The Court in 2016

Judicial dialogue with the national courts

remained a high priority in 2016.

he year 2016 was marked by major political events in Europe,

notably the decision of the electorate of the United Kingdom to

leave the European Union. Historic though that development

undoubtedly was, it did not directly affect the Convention system.

Other events that marked the year did have direct repercussions for the

Convention, though. In response to the attempted

coup d’état

in July,

Turkey declared a state of emergency and gave notice of a derogation

under Article 15. The state of emergency in France was extended, and

its derogation under the Convention maintained, following the deadly

terrorist attack in Nice on 14 July. The other derogation in place, by

Ukraine, was also extended, the Government citing rising tensions in the

eastern part of the country as the reason for this.

The critical situation as regards mass migration persisted. From the

human rights perspective, there were deep concerns over the situation

and treatment of this vulnerable group. This was particularly so in relation

to children and young people, whose vulnerability in such circumstances

is necessarily all the greater. This was one of the themes included in a

round table for judges that took place at the Court in November 2016,

organised jointly with the Court of Justice of the European Union and

the International Association of Refugee Law Judges. The principle of

the best interests of the child was discussed by the expert audience, in

the light of the relevant case-law of both European courts.

Interaction with other courts, national and international, was a

prominent theme in 2016. Regarding national courts, judicial dialogue

remained a high priority in 2016. There were working visits to Strasbourg

by senior judges from many European States, to hold discussions and

to exchange views with members of the Court. Judicial dialogue was

not confined to the classic bilateral model, since – as noted above – the

Court was involved in multilateral dialogue too. This extended model

naturally enriches the exchanges among judges. To be mentioned in

Annual Report 2016

The Court in 2016

Page 10

this regard is the first meeting between the Court and the Network of

the Presidents of the Supreme Judicial Courts of the European Union.

The members of this body are key interlocutors for the European Court

of Human Rights. It is mainly courts of this high rank that will be able

to make use of the advisory-opinion procedure to be introduced by

Protocol No. 16 to the Convention. The Court therefore welcomed the

initiative of the President of the Network, Chief Justice Denham of

Ireland, to arrange a joint meeting in Strasbourg. The issues discussed

included the principle of subsidiarity and the manner in which Protocol

No. 16 should function. Another multilateral event was the biennial

meeting of the highest German-speaking courts (Sechser-Treffen). The

Court hosted senior judicial figures from Austria, Germany, Liechtenstein

and Switzerland, along with representatives of the Court of Justice of the

European Union.

Another dimension to judicial dialogue was that linking the two

European Courts. It has been their practice over many years to hold

regular meetings. Following a pause while the draft agreement on

accession was under review by the Court of Justice, the practice was

resumed under the two new Court Presidents. The meeting, attended

by many judges from each court, was a sign of the desire shared by both

institutions to continue to develop mutual relations. It coincided closely

with significant jurisprudential developments on both sides.

Judicial dialogue also had an international and intercontinental

aspect in 2016. Judges of the Constitutional Court of South Africa visited

Strasbourg in January to meet with members of the Court, as well as

other Council of Europe bodies, notably the Venice Commission. The

Supreme Court of India, represented by its Chief Justice, was another

notable visitor to the Court. In July the President of our Court led a

delegation of judges to Geneva to meet with the United Nations Human

Rights Committee, renewing contacts between the two bodies that

were established several years ago.

Alongside the classic mode of dialogue with other courts, 2016 saw

the consolidation of the Superior Courts Network (SCN). This initiative,

which began in October 2015, had a first stage of development involving

two domestic Superior Courts, the French

Conseil d’État

and Court of

Cassation. During this test period, the parameters of the SCN were

explored. A set of operating rules was drawn up, complementing the

guiding principles set out in the SCN’s Charter. Working methods and IT

tools were developed, including a virtual collaborative workspace for the

member courts. By mid-2016 the SCN was ready for expansion. During

the course of the second half of the year, membership increased to

Annual Report 2016

The Court in 2016

Page 11

twenty-three Superior Courts from seventeen States. With more courts

expressing their interest in taking part in the initiative, membership is

expected to rise to over thirty during 2017.

For the European Court, the SCN serves as a means to obtain, from

highly authoritative sources, information on aspects of domestic law.

This is of great value to the Court, given the importance of comparative

law as a point of reference for the interpretation of the Convention,

particularly in cases that are considered by the Grand Chamber.

For Superior Courts, membership of the SCN gives them access to

information on Convention case-law in a number of formats, which

was a wish frequently expressed in the past to the Court. These include

the commentary of the Jurisconsult on significant new cases decided

by the Court each week, and research reports on issues of Convention

jurisprudence which are prepared by the Registry’s Research Division.

It has also been agreed that the member courts can submit questions

regarding the case-law, it being understood that this should remain

within reasonable limits. Distance training on how to make full use of

the Court’s information resources, as well as on substantive Convention

subjects, can be provided by the Registry to the member courts.

The establishment of the SCN, with the benefits that it brings to

all of the courts involved, represents a very practical means of sharing

responsibility between the national and European levels in the

implementation of the Convention. It can be regarded as a forerunner

to the formal cooperation between courts that will come into being

when Protocol No. 16 comes into force. In preparation for this, the Court

completed its work on the rules that will govern the advisory procedure,

which will be published in due course as a new chapter of the Rules of

Court. It is intended to supplement these provisions with more detailed

guidance for national courts. There were no further ratifications of the

Protocol during 2016. However, ratification procedures were under way

in a number of States, raising the real possibility of the Protocol taking

effect in the coming year. Strong support for the Protocol by France

was stressed by President Hollande, who paid a visit to the Court in

September and spoke about this issue in his address to the Parliamentary

Assembly of the Council of Europe.

In preparing the rules for the advisory procedure, the Court

consulted with States and also a number of civil society organisations.

A practice of consulting these different parties regarding changes to

the Rules of Court has formed over the years. In 2016 the Court decided

to go a step further and incorporate the principle of consultation

into the Rules of Court. The new Rule 111, published in November,

Annual Report 2016

The Court in 2016

Page 12

provides that the Contracting Parties, organisations with experience in

representing applicants and relevant Bar associations will be consulted

on any proposal to amend Rules that directly concern the conduct of

proceedings. With this amendment, the Court has reacted positively

to the wish of the States, expressed in the Brighton Declaration in

2012 and again in the report by the Steering Committee on Human

Rights (CDDH) in its report on the longer-term future of the system of

the European Convention on Human Rights, to have a role in the rule-

making procedure. The involvement of State representatives is balanced

by that of the other parties mentioned in Rule 111, whose perspective

is a highly relevant one. The new consultation procedure was presented

at the regular Meeting with Civil Society that took place at the Court in

December, attended by sixty non-governmental organisations.

Discussions on Convention reform continued during the year. In

February the Court published a comment on the report of the CDDH

referred to above. It agreed in large part with the analysis of the

CDDH, and shared the report’s conclusion that, with one exception,

the challenges facing the Court and the wider Convention system

could be met within the current framework. This implied a redoubling

of efforts in a number of respects, notably as regards the execution

of judgments, and the improvements in domestic remedies so as to

strengthen subsidiarity within the system. Other points in the report

and referred to in the Court’s comment are the taking into account of

human rights principles in the legislative process, training in human

rights law, and the translation of Convention case-law. On this last

point, the number of translations in the HUDOC database (judgments,

decisions and summaries) increased in 2016 to over 20,000 texts in more

than thirty languages other than the two official ones. The one aspect

with regard to which the CDDH report envisaged possible amendment

of the Convention concerns the provisions on the election of judges

(Articles 21 and 22). Linked to this are the prior stage of selecting

candidates for inclusion on the list of three names and the role of the

Advisory Panel of Experts on Candidates for Election as Judge to the

European Court of Human Rights in the procedure. Inter-governmental

discussion of these matters has commenced, involving the Court and the

other institutional actors concerned. In this respect, and more generally

as regards States’ further consideration of the longer-term future of the

Convention system, the Court has emphasised the enhancement of its

independence as an international judicial body.

Later in the year the Court reported to the Committee of Ministers

on its follow-up to the Brussels Declaration of 2015. On two points,

Annual Report 2016

The Court in 2016

Page 13

the Court explained why it had decided not to accede to the request

addressed to it. The first concerned the procedure for referring cases to

the Grand Chamber (Article 43), and suggested that the Panel indicate

its reasons when declining to accept a request for referral. The Court

noted that this idea lacked any basis in the text of the Convention, and

that was further confirmed by the explanatory report to Protocol No. 11.

More significantly, the Court considered that if the Panel were to provide

anything more than a purely formal explanation of its negative decision,

this would sit ill with its role, which is to act as an intermediary filtering

body exercising a wide discretion based on broadly defined criteria. It

warned of a risk that, were the Panel to provide substantive reasons,

this could affect the integrity and finality of the Chamber judgment.

On the second point, which was to provide reasons for the indication

of interim measures (Rule 39), the Court explained that this was not

compatible with the need to decide requests within a very short time

frame, generally on the same day the request is received.

The Court’s workload increased during the year. While the

number of new applications showed a significant decrease in 2015,

the general upward trend of previous years resumed, with more

than 53,000 applications allocated to judicial formations. In certain

respects, the Court’s situation remained relatively stable. Thus the

number of cases pending at the level of the Single Judge remained

at a manageable level throughout the year. The number of repetitive

cases increased and remains very high at almost 35,000. There was

a substantial influx of high-priority applications, this category of

applications standing at almost 20,000 by the end of the year. Many of

the new applications raised complaints under Article 3 regarding prison

conditions. A significant proportion of these relates to the situation in

prisons in Hungary and Romania. Concerning the former, the situation

was addressed in the Court’s pilot judgment in the case of

Varga and

Others

in 2015. In November 2016 the Fourth Section took the decision

to adjourn examination of approximately 7,000 Hungarian cases until

the end of August 2017. This decision was taken in the context of

the measures introduced by the national authorities to execute the

Varga and Others

judgment, including a remedy for those who have

experienced unacceptable conditions of detention and the easing of

overcrowding by different means.

Along with the high number of priority applications, the Court

also faces approximately 21,000 applications that are neither clearly

Varga and Others v. Hungary,

nos. 14097/12 and 5 others, 10 March 2015.

Annual Report 2016

The Court in 2016

Page 14

inadmissible nor repetitive. Since these cases require in-depth judicial

examination, it can be said that the greatest weight of the Court’s docket

rests here. As a response to this, the Court introduced a new approach

to such cases, involving immediate, simplified communication to the

respondent State. This means that the case proceeds, in the initial

stage at least, more quickly than under the usual approach of the

Registry drafting a detailed summary of the facts for use as the basis for

communicating cases. Instead, the Registry forwards to the Government

concerned the form filled out by the applicant, which, due to the strict

application of Rule 47 (contents of an individual application) and a

simpler, clearer structure, ought to be sufficient to inform the respondent

State of the claims being raised before the Court. The Court’s input at this

stage is limited to indicating the subject matter of the application and

setting out the questions the parties should address in their pleadings.

The approach was introduced on a test basis in March 2016, in relation to

twelve States. By the end of the year, close to 500 applications had been

communicated to the Governments concerned. For the Court, the new

approach is a manifestation of the idea of shared responsibility, which

States have recognised in the various reform conferences. It means

a very concrete sharing of the task of taking cases through the initial

stage of the procedure before the Court. The adversarial character of the

procedure is maintained, since the Government may contest any factual

statement put forward by the applicant. Through earlier communication

of the case, it should be possible to reduce the overall duration of the

proceedings before the Court. A first round of feedback was received by

the Registry when it met with Government Agents in December, which

will help to identify any necessary adjustments that should be made to

the procedure.

The Court hosted a number of events during the year. One such event

was a conference on the theme “The European Court of Human Rights

and the Crimes of the Past” that took place in February and was organised

in cooperation with the European Society for International Law. Another

was the launch of the European Implementation Network in December.

This is a civil-society initiative in favour of the effective implementation

of the Court’s judgments through the greater participation in the process

by civil society and enhanced transparency of the execution stage. The

Court’s Vice-President, Işɩl Karakaş, participated in the inaugural round-

table discussion before a large audience including members of the

Court, the Human Rights Commissioner, diplomatic staff, and many non-

governmental organisations.

Annual Report 2016

The Court in 2016

Page 15

Finally, in November the President of the Court travelled to the

Netherlands to receive the Treaties of Nijmegen Medal. The award is

conferred every two years on a person or body for their contribution to

the development of Europe. Speaking at the ceremony, Bert Koenders,

the Minister for Foreign Affairs of the Netherlands, observed that it is

impossible today to understand Europe without understanding human

rights. Of the Court he said that it had contributed greatly – often against

the odds – to the development of human rights and the rule of law

throughout Europe. Its success as the ultimate guardian of human rights

was unparalleled and its role more important than ever. He later stated

that the Court “is truly a last port of call for those whose rights have

been disrespected or insufficiently recognised by domestic authorities.

It embodies the awareness that human rights are too fundamental to be

left entirely to the powers and interests of the nation State. Its existence

acknowledges that fair treatment of all individuals is a prerequisite for

peace and stability.” It was an important statement of support for the

idea of European human rights law and the institutions that serve it,

welcome words for the Court in challenging times.

Annual Report 2016

Speeches

Page 17

Chapter 2

Speeches

GUIDO RAIMONDI

President of the European Court of Human Rights, opening of the

judicial year, 29 January 2016

residents of Constitutional Courts and

Supreme Courts, Madam Chair of the

Ministers’ Deputies, Secretary General

of the Council of Europe, Excellencies, ladies

and gentlemen,

I would like to thank you personally and

on behalf of all my colleagues for honouring

us with your presence at this solemn hearing

for the opening of the judicial year of the

European Court of Human Rights. By accept-

ing our invitation you have shown once again

the strength of your support for the Court. As

we are still in January – albeit for only a few

... it will be necessary to

more hours – as is the tradition here, I would

devise new working methods,

like to wish you a happy and fruitful new year

including new forms of

cooperation with national

for 2016.

authorities. This is one of

Today’s hearing is one of particular signif-

the ambitions for my term

icance. It is the first time that I have given an

of office as President.

address on this occasion. It is a great honour to

be in this position and I am grateful to my colleagues for showing their

confidence in me by electing me as President of the Court.

In keeping with tradition, I would like to begin by referring to some

statistical information regarding our Court’s activity. But before doing

so – and since the figures are very positive – I wish to pay tribute to my

predecessors, and in particular to Dean Spielmann, under whose pres-

idency the Court has considerably reduced its backlog, and also to its

outstanding former Registrar Erik Fribergh, whose role in the Court has

been essential.

Annual Report 2016

Speeches

Page 18

In 2015, therefore, the Court continued to manage the flow of the

cases brought before it. In total, it has decided over 45,000 cases. As you

know, the elimination of the backlog of single-judge cases was one of

the aims of 2015 and it was indeed fulfilled. We now have only 3,250

such cases pending. This is clearly a remarkable result and one to be

commended. I hope that we will, within a short time frame, dispose

with similar efficiency of the 30,500 repetitive cases that are currently

pending. We have the technical means to achieve that, but it will also

depend on the capacity of the respondent States to deal with such cases.

The number of applications disposed of by a judgment remained

high in 2015: 2,441, up from 2,388 the previous year. At the end of 2014,

we had approximately 70,000 applications pending. That figure fell to

just under 65,000 at the end of 2015, down 7%.

I would like to point out that this progress has to a significant extent

been made possible by those States which have agreed to support the

Court, either by contributing to the special account set up after the

Brighton Conference to help us deal with our backlog, or by making

lawyers available to us through secondment.

I could simply express my satisfaction with these results and take

the view that I now have an easy task ahead. But we cannot rest on

our laurels. On the contrary, we will be facing some considerable chal-

lenges over the next few months. To start with, one of the new features

in 2016 will be the introduction of improved reasoning for single-judge

decisions. The reasoning in such decisions has, as you know, been very

laconic. That was a cause of frustration not only for applicants but for

judges too. But the number of applications (over 100,000) was so high

that we were unable to resolve the issue. Of course, the need for rea-

soning, according to our case-law, is the essential basis of the trust that

citizens must have in their systems of justice. Furthermore, at the high-

level conference held in Brussels last March, the States expressly asked

the Court to provide reasoning for single-judge decisions. I am there-

fore happy to announce that the Court will respond to that call during

the first half of this year. Naturally, we will seek to meet that expecta-

tion while continuing to deal with admissible cases and avoiding the

build-up of a new backlog.

My other concerns relate to priority cases – which currently total

11,500 – and ordinary Chamber cases, of which there are some 20,000.

It is clear that these cases, which are by definition more complex, repre-

sent a challenge for us in the coming years. In any event, these figures

will have to be brought down from their present unacceptable level.

We will have to act on several fronts: dealing with the older cases while

Annual Report 2016

Speeches

Page 19

ensuring that new cases are resolved within a satisfactory time frame. In

order to succeed, it will be necessary to devise new working methods,

including new forms of cooperation with national authorities.

This is one of the ambitions for my term of office as President.

However, I am not alone in this endeavour. I am fortunate to be able to

work with judges of the highest quality who are profoundly devoted to

the Court. I would like to commend them publicly on this occasion. I am

particularly happy to mention those of us here tonight who are taking

part for the first time in this solemn hearing as judges of the Court.

They have recently taken up office and will sit on the bench for the next

nine years. They can rely on the assistance of the high-quality staff of

the Registry, whom I would like to take this opportunity to thank for the

work that they accomplish on a daily basis for the good of the Court.

As you all know, the authority of a court and its legitimacy depend

largely on the quality of those who sit on its bench; hence the impor-

tance of the process by which our judges are appointed. Here I would

like to pay tribute to the work of the Council of Europe’s Parliamentary

Assembly and the Advisory Panel of Experts on Candidates for Election

as Judge to the European Court of Human Rights, chaired by former

Chief Justice of Ireland, John Murray.

In 2015 we pursued our dialogue with other courts, both national

and international. We have received and paid many visits, furthering

the dialogue between judges, but I will not list them all here. I will

confine myself to three examples, because they illustrate our Court’s

renown throughout the world. A very important visit was paid to the

Supreme Court of Canada, and it was marked by the warm welcome we

were given there. In Strasbourg we received a delegation of members

of the International Court of Justice, with whom we were able to share

working methods and discuss our respective case-law. Lastly, only a few

days ago, it was the very prestigious Constitutional Court of South Africa

which paid us a visit.

Another event related to this dialogue was the launch – on 5 October

2015 – of our network for the exchange of information on the case-

law of the European Convention on Human Rights (Superior Courts

Network), as announced on this occasion last year. The aim of this ini-

tiative, welcomed in the Brussels Declaration, is to promote a reciprocal

flow of information between us and the higher national courts. We are

currently conducting a trial run with the two French Supreme Courts, the

Conseil d’État

and the Court of Cassation, and I am glad to welcome here

tonight the distinguished heads of those courts: Vice-President Jean-

Marc Sauvé, First President Bertrand Louvel and Prosecutor-General

Annual Report 2016

Speeches

Page 20

Jean-Claude Marin. Other courts have already expressed an interest in

joining our network and I hope that this will be possible in 2016. This

new cooperation between the European Court of Human Rights and

national Supreme Courts is an embodiment of our shared responsibility

for the implementation of the European Convention on Human Rights –

a subject which was the focus of the Brussels Conference.

However, an overview of the past year cannot be confined to figures

or to a description of how the Court works. Of most importance, ulti-

mately, are the decisions that we deliver, and especially those that

demonstrate our capacity to rise to the challenges of the contemporary

world. In this connection, the year 2015 has been particularly fruitful.

The Court is regularly called upon to deal with new problems. They

are usually extremely sensitive matters on which there is little or no con-

sensus, either in Europe as a whole or even at national level. These are

issues which sometimes give rise to very heated debates in our societies.

I do, of course, consider it to be a positive sign that citizens are turning

to our Court to find the answers to their questions. It reflects the high

level of trust that they place in the Convention system. This is a great

responsibility for us.

On the subject of case-law, I will begin by referring to that of the

Grand Chamber. These are the cases that give rise – and understandably

so – to particular scrutiny by domestic courts and they are considered

by some to be the cursors of the Court’s jurisprudential policy. These

judgments are of equal legitimacy, regardless of the majority by which

they are decided.

The leading cases of 2015 include that of

Lambert and Others v.

France

on the question of end-of-life situations. It is quite rare for cases

to attract, to such an extent, the interest of the media worldwide. The

Court was confronted with the fact that there was no consensus among

the member States of the Council of Europe as to the discontinuance

of treatment keeping a human being alive artificially. It took the view

that the provisions of French law, as interpreted by the

Conseil d’État,

constituted a legal framework which was sufficiently clear to regulate

with precision the decisions taken by doctors in such situations. The

Court was fully aware of the issues raised by a case concerning medical,

legal and ethical questions of the highest complexity. It found that it was

primarily for the domestic authorities to verify whether the decision to

stop such treatment was in conformity with domestic law and with the

Convention, and to establish any wishes that may have been expressed

by the patient.

Lambert and Others v. France

[GC], no. 46043/14, ECHR 2015.

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We therefore reached the conclusion that the case had been the

subject of an in-depth examination in which all views had been heard

and all aspects carefully weighed up, having regard both to a detailed

medical assessment and to general observations emanating from the

highest medical and ethical bodies. This case is a fine example of the

proper application of the subsidiarity principle.

Another case,

Delfi AS v. Estonia

, was much less distressing but

equally important; it concerned the question of freedom of expression

in the digital-media context. This case illustrates the sort of new subject

matter we are called upon to address, often relating to new technolo-

gies or scientific progress. This was the first case in which the Court

had occasion to examine the responsibility of an online news portal for

comments posted by its readers. Two contradictory realities lay at the

heart of this case: on the one hand, the benefits of the Internet that we

all appreciate, especially the fact that it is an unprecedented medium

for the exercise of freedom of expression and, on the other, the risks

that it presents, and in particular the danger of its being used for hate

speech or calls to violence, reaching a worldwide audience instantly and

remaining online perhaps indefinitely.

The applicant company complained that the national courts had

found it liable for offensive comments posted by third parties.

In its judgment, the Court attached particular weight to the extreme

nature of the comments, and also to the fact that Delfi ran its news portal

on a commercial basis. It then took account of the fact that Delfi had

not ensured that the authors of the posted comments could be held to

account for their own remarks. Lastly, it noted that the measures taken

by Delfi to prevent the publication of defamatory comments or to delete

such remarks promptly after their publication had been insufficient. The

decision of the Estonian courts to find against Delfi was thus regarded as

justified and as not constituting a disproportionate restriction of its right

to freedom of expression.

Delivered at the end of last year, the case of

Roman Zakharov v. Russia

is also of interest, for a number of reasons. Firstly, because it dealt with

a fundamental question in our societies – that of covert surveillance.

Secondly, in terms of admissibility, as our Court found that the applicant

was entitled to claim to be a victim of a violation of the Convention

even though he had presumably not been subjected to any real surveil-

lance measure himself. In view of the lack of a remedy at national level,

together with the covert nature of the measures and the fact that they

Delfi AS v. Estonia

[GC], no. 64569/09, ECHR 2015.

Roman Zakharov v. Russia

[GC], no. 47143/06, ECHR 2015.

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affected all users of mobile telephone services, the Court thus examined

the Russian legislation in the abstract. That led us to conclude that the

provisions of Russian law governing the interception of communica-

tions did not contain adequate and effective safeguards against arbi-

trariness. Having also found shortcomings in the legal framework in a

number of respects, we held that there had been a violation of Article 8

of the Convention.

End-of-life situations; issues regarding new technologies; arbitrary

surveillance measures; those are just a few examples, among many

others, of the diversity of our case-law in 2015.

To conclude this brief overview, I would like to mention one other

case – not a Grand Chamber or Chamber judgment, but an inadmissi-

bility decision. A decision which brings us back to the essence of our

mission, to the values that our Court has defended from the outset.

In the case of

M’Bala M’Bala v. France

, the applicant had tried to take

advantage of his status as an artist in order to propagate his racist ideas.

In one of his shows he had called upon a well-known academic, who

had been convicted a number of times in France for his negationist and

revisionist views, to join him on stage in a gruesome and ludicrous scene

which the audience were invited to applaud. The Court took the view

that the show at that point was no longer a form of entertainment but

had become a sort of rally and that, behind the façade of humour, it was

promoting negationism. The applicant had sought to misuse Article 10

by claiming a right to freedom of expression for purposes that were

incompatible with the letter and spirit of the Convention. It was impor-

tant for the Court to reassert that the European Convention on Human

Rights did not protect negationist and anti-Semitic expression.

But my overview of 2015 would not be complete without mention-

ing the crises that we have witnessed: not only the migrant crisis, which

has been escalating over the past few months, but also and above all the

terrorist attacks which have struck us in Europe – again recently – and

which have left our democracies in a state of shock.

We cannot but commend the foresight of the Convention’s drafters

who, by inserting Article 15 of the Convention into our body of law, and

thus providing for the possibility of derogating from certain rights in

cases of danger threatening the life of the nation, gave our democracies

the means to defend themselves in times of emergency; but impor-

tantly, to defend themselves without destroying the fundamental values

on which our system is based and without abandoning the Convention

M’Bala M’Bala v. France

(dec.), no. 25239/13, ECHR 2015.

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system. Faced with the enemies of democracy, we must continue to

uphold the rule of law.

Article 15 leaves States a broad margin of appreciation. However, they

do not enjoy unlimited powers and the Court will always be required to

verify that their measures remain within the “extent strictly required by

the exigencies” of the crisis at hand.

I felt that it was important to emphasise, on this occasion, that the

Court is “acutely conscious of the difficulties faced by States in protecting

their populations against terrorist violence, which constitutes, in itself, a

grave threat to human rights”. The Court thus finds it legitimate for “the

Contracting States to take a firm stand against those who contribute to

terrorist acts”, but without destroying our fundamental freedoms, for not

everything can be justified by an emergency.

Presidents of Constitutional Courts and Supreme Courts,

Your presence among us here every year is something to which I

attach great importance. Our Court and your courts protect rights which

are, broadly speaking, the same.

Like you, we have the task of examining individual applications and a

mission that is constitutional in nature.

Like us, you are sometimes exposed to criticism. But, in your respec-

tive countries, your very existence and the respect due to you are neces-

sary conditions of democracy and you participate, like us and with us, in

the construction of a Europe of rights and freedoms.

Ladies and gentlemen,

One of the oldest constitutions in the world is that of Poland. It

dates back to 3 May 1791. It has enshrined, since then, the separation

of powers and the independence of the judiciary, and 3 May is now the

Polish national day. A fine symbol indeed!

I am particularly glad to welcome here this evening, to the European

Court of Human Rights, Mr Andrzej Rzepliński, President of the Polish

Constitutional Court.

President,

It is a pleasure for me to give you the floor.

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ANDRZEJ RZEPLIŃSKI

President of the Polish Constitutional Court, opening of the judicial

year, 29 January 2016

eing a judge is equally beautiful and

utterly absorbing as being a doctor or a

scholar. The profession of judge is not a

good career for persons who do not possess a

sufficiently well-established sense of personal

and professional dignity, the virtue of personal

integrity, an impeccable past, professional

and practical knowledge, social and family

maturity, and personal maturity, to be able to

assume full responsibility for each ruling given

in accordance with the law and with their own

conscience.

Each judge must be equipped with good

Courage is also indispensable

work-organisation skills so that any acts of

for a judge to perform his

neglect do not tempt him to pacify either “the

duty of being independent.

superiors” or one of the parties. A judge must

have the courage not only to make decisions but also the moral courage

to judge specific persons. Being a judge is “one of the most fundamental

functions in each society”

The importance that societies have always attached to selecting

the best persons possible to fill these posts is well demonstrated by

the requirements posed for future judges by the ancient Jewish law,

which included first of all “the knowledge of law, combined with general

education” and “the impeccability of character combined with piety,

gentleness and kind-heartedness”

. A judge – in the Christian doctrine,

according to Saint Thomas Aquinas – is a man who should live in “a state

of perfection, that is, in truth”. Judges “should by virtue of their office be

the guardians of truth in the judiciary”, like scholars in science – “A lie in a

court or against science is a deadly sin”

5. Israel Drapkin, “The art of sentencing: some criminological considerations”, Reports of

UNAFEI, 1978, No. 16, p. 53.

6. Salomon Ladier,

Proces karny w Talmudzie

Penal Trial in the Talmud],

Jaeger, Lwów ,

1933, p. 46.

7. Tomasz z Akwinu,

Cnoty społeczne pokrewne sprawiedliwości

(Treatise

on Justice),

transl.

F.W. Bednarski, London, Veritas, 1972, qu. 110, 4, 5.

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Worlds apart from the values that a judge must represent in a State

ruled by law was a judge called to serve by Vladimir Lenin who, by virtue

of his absolute authority, issued orders to judges to openly sow terror

with their rulings, and to justify and legitimise them “in a principle-based

manner, without any falsehood and beautification”. In civil cases, judges

were to pass orders of confiscation and requisition, to exercise super-

vision over merchants and entrepreneurs, and not to recognise any

private ownership. From criminal court judges he demanded his two

favourite punishments: either death by firing squad or deportation for

forced labour. The punishments had to be “merciless”, the courts had to

be “militant” – “the proletariat’s courts”, he wrote, “should know what to

allow”.

Within the system of a totalitarian State, there was no room for an

independent judge. Even though the regime gradually softened, and

the judiciary’s terror subsided accordingly, the subsequent genera-

tions of judges were prepared for service by judges who, through their

rulings, had destroyed the lives of tens of thousands of people. In a total-

itarian state, for the purposes of a ruthless fight with the political oppo-

sition, it was always easy to find judges who did not mind being used to

spread institutionalised, legal terror, in the name of the law. A specific

award for them was a sense of total impunity. They were protected by

the Communist party – their party. The judiciary was permeated with

political corruption through and through. Hitler was just as efficient in

demoralising judges as Lenin was

After 1948, judges behind the Iron Curtain worked in toxic conditions.

The departure, after 1956-60, from the exercise of power by mass intimi-

dation of society opened up a margin of independence for most judges.

Extraordinary courage was no longer required. What was required was

internal honesty. Nonetheless, regimes still need judges, also in periods

of decline, to maintain control over society. Admittedly, this was already

to be achieved at lesser expense. It had been hard to govern with bay-

onets. The control of people began to be exercised using relatively soft

measures. This created a niche for most judges. Particularly those who

preserved some institutional memory of the pre-communist or pre-

Nazi eras.

Many judges then still had pre-revolutionary publications in their

home libraries.

8. W.I. Lenin,

Dzieła wszystkie

[The Collected Works],Warsaw, 1989, vol. 44, pp. 317, 379, 394.

9. Ingo Müller,

Hitler’s Justice: The Courts of the Third Reich,

Harvard University Press, Cambridge,

1991; Helmut Ortne,

Der Hinrichter: Roland Freisler – Mörder im Dienste Hitlers

[Murderer in

the service of Hitler], Nomen, Frankfurt, 2009.

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A few managed to get hold of uncensored books published in free

countries.

Most of the judges were aware of the standards that were binding in

the countries of free Europe.

These circumstances helped the transformation of the judiciary,

which started in 1989-90. This transformation required and still requires

time; it also requires painstaking practice, good, stable law, and respect

for the separateness of the judiciary on the part of the subsequent polit-

ical parties after they win parliamentary elections.

For the transformation of the judiciary to be fully completed, it is

necessary, after the period of transformation, for the new judges to

be prepared for their role by older colleagues who have adjudicated

throughout their lives in a State ruled by law where the separation of

powers is a well-established and unquestioned principle. This means

decades of practice, as in the Bible’s story of forty years of exodus from

Egyptian slavery. One cannot buy time.

Today, just as it has been throughout the centuries, societies demand

judges who are men of integrity and who have adequate intellectual

capabilities, good work-organisation skills and solid knowledge of the

law and its application

. Not every lawyer who has passed a judge’s

exam is able to meet such requirements.

I have devoted thirty years to research on the history of the judici-

ary, to analysing the essence and challenges of a judge’s authority

, to

the formation of the system of courts guaranteeing the separation of

the three powers in Poland and in other countries, and furthermore, to

the active defence of judges against attacks, as well as to monitoring

the procedures of judges’ appointment to office and to monitoring the

quality of the work of courts and judges.

I have held the office of judge at the Constitutional Court for eight

years; soon my nine-year term of office will come to an end. Having the

experience of these years of a judge’s practice, I can attempt to answer

10. The eighth of the Basic Principles on the Independence of the Judiciary of the United

Nations of 1985 reads that “judges shall always conduct themselves in such a manner as to

preserve the dignity of their office and the impartiality and independence of the judiciary”,

whereas from the tenth Principle it follows that judges shall be “individuals of integrity

and ability with appropriate training and qualifications in law”; see A. Rzepliński, 1981,

“Niezawisłość sądownictwa w świetle norm ONZ [The independence of the judiciary in the

light of the UN norms]”,

Tygodnik Powszechny,

1987, No. 33. The wording of the international

norms taken over by the International Commission of Jurists and by the Law Association

for Asia and the Pacific is similar (see World Conference on the Independence of Justice,

Working Documents, Montreal, June 5-10, 1983).

11. Andrzej Rzepliński,

Die Justiz in der Volksrepublik Polen

[Justice in the Polish People’s

Republic], Dieter Simon (Foreword), V. Klostermann, Frankfurt, 1996.

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the fundamental question that I asked myself when I accepted the kind

invitation of the President of the European Court of Human Rights,

Professor Guido Raimondi, to deliver a speech before such a dignified

assembly, so uniquely important for over 800 million Europeans – this

assembly of outstanding judges, judges of those millions of people, also

my judges. I decided to ask myself this question, as expressed in the title:

what does it mean to be a judge? For my speech today, I have gathered

thoughts that have come to mind at various stages of my career as judge

and in my research on the judiciary.

Referring to the concept of antinomy in the idea of law from the

work of Gustaw Radbruch

, I would say that a judge’s public function is

to realise an idea of law which comprises legal security, common good

and justice. In the case of a constitutional judge, this means assessing

the conformity of normative acts with the Constitution in a manner

which at the same time protects the stability of law, eliminates instances

of injustice from it (for example, unjustified interference with the liber-

ties and rights of man and the citizen) and realises the idea of common

good, that is, the idea of a State in which decisions are made by way

of agreement and cooperation, and not imposition, a State which does

not exclude anyone and for which all citizens bear responsibility. This is

an extremely difficult task, requiring no mean competences and skills

and a specific attitude; which is why not everyone can undertake it. To

perform this task thoroughly one has to be very well prepared in terms

of substantive knowledge and, apart from that, one must be character-

ised – at the very least – by fairness, independence, courage, sensitivity

and – a quality which is often forgotten – humility.

Speaking of the necessity of very good preparation in terms of

substantive knowledge, one may say that to be a judge means to be a

craftsman and to have the ambition to be an artist, like Italian crafts-

men – artists of luxury goods, so admired worldwide. A wise, fair judg-

ment is the work of a craftsman – an artist of law. This term may be used

for a judge who is an expert in the dogmatics of law, understands law,

perceives it as a structure, as a certain mechanism, that is, who knows

and “feels” “how law is built, what rules govern or should govern its

construction, functioning and interpretation”

. The knowledge and

understanding of law require from a judge that he keep his mind in con-

stant motion. He does not stop being a judge the moment he leaves

12. See Gustaw Radbruch,

Filozofia prawa

(Philosophy of law), transl. Ewa Nowak, Warsaw,

2012, pp. 79-84, 241-43.

13. Ewa Łętowska,

Prawo bywa bardzo piękne

[The law is sometimes very beautiful], an

interview on Channel Three of the Polish Radio of 27 February 2011.

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the courthouse. Some judges are better at the art of judging, others are

not so good. A judge rapporteur of a case in which there is – and which

he notices – an important legal issue, a constitutional issue, an issue

of importance from the perspective of the European Convention, may

actually outplay the first violin, as in a chamber symphony orchestra.

But, just as in an orchestra, nearly every work of art that an unprece-

dented judgment, referred to for years to come, undoubtedly is, will be

a common achievement of various artists of law: those who brought

the case to the court, presented new, challenging arguments and those

who, in a court dispute, submitted in an equally brilliant manner their

counter-arguments, together with – an equally salient point – any other

judges who have adjudicated upon the case. Poor is the judge who will

not notice the potential of such a case for jurisprudence. A wise and fair

judgment increases the satisfaction of being a judge. Such a judge must

possess the skill of bridging law and life. This is a challenge of special

importance when the IT revolution changes, twists and redefines eternal

values. The bar has been raised very high. Not without reason did Ronald

Dworkin present in his works the character of the judge as Hercules

. To

be a judge, one has to, more often than not, demonstrate a strength that

is comparable to the strength of a Greek hero.

In order to thoroughly fulfil the public function of a judge, that is –

as I mentioned above – to realise an idea of law which comprises legal

security, common good and justice, what is indispensable is not only

expertise in the craft and art of law, but also a certain attitude of a judge

as an individual. A judge must possess certain traits of character and

personality. Among the most important ones, as I said at the beginning, I

would list fairness, independence, courage, sensitivity and humility.

A fair judge is a judge who gives everyone his rightful due. Such a

definition of a fair judge requires specification of a criterion whereby

he assesses what is rightfully due to whom. For constitutional judges,

such a criterion is the Constitution, confirming the fundamental values

and rights, setting forth the competences of individual constitutional

bodies. A fair judge must apply the criterion of giving everyone his due

in a consistent manner, that is, he must treat equals the same way, and

those who are not equal he must treat differently. Only such a judge will

be a fair judge, and thereby also an impartial one.

The Constitution, as a criterion whereby everyone is given his due, or

any other objective criterion, is linked with another indispensable trait

of a judge as an individual – with his independence. An independent

14. See Ronald Dworkin,

Biorąc prawa poważnie

[Taking laws seriously], Warsaw, 1998;

Ronald Dworkin,

Imperium prawa

[Law’s Empire], Warsaw, 2006.

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judge is a judge who is well prepared in terms of substantive knowl-

edge – this is where yet another role of good substantive preparation

comes into the fore, as a condition of a judge’s independence – and is

able to think critically, that is, is intellectually independent. Otherwise,

he will be dependent on the knowledge and views of other people, for

example, other judges or his assistants. An independent judge is also

someone who is internally independent, adjudicating not on the basis

of his views and postulates, but on the basis of the criterion of adjudica-

tion conferred on him by law

. In the case of constitutional judges, this

criterion is the Constitution.

A judge must also be a sensitive individual. Just as a doctor must

remember that a patient is a human being and not a medical case, a

judge must also remember that a person appearing in a specific legal

situation is a human being and not a subjective element of a case. This

also applies to constitutional judges. The decisions of a Constitutional

Court shape people’s lives – sometimes the life of all inhabitants of the

country. To be a constitutional judge is to remember that behind a judg-

ment on the hierarchical conformity of legal norms with the Constitution

there are specific situations involving many people, and this fact needs

to be taken into account in adjudicating a case.

The fundamental traits of a judge, determining as they do the relia-

ble holding of the public function entrusted to him, also include humil-

ity. This is an oft-forgotten trait. Meanwhile, the awareness of one’s own

imperfections, and – by the same token – fallibility, is a judge’s indispen-

sable tool that enables him to choose the best solutions, and not always

those invented by himself. Humility will also be necessary to be able to

accept reasonable criticism of the decisions made – on the part both of

professionals and of public opinion, the voice of which, in a democratic

State ruled by law, a judge cannot disregard.

Therefore, a judge must thoroughly justify his decisions in order

to explain to others, and to public opinion in general, the reason for a

particular decision, and thereby to account for the authority with which

he has been entrusted. A judge is there for people, and not

vice versa.

Respect for public opinion, treating it as an empowered subject, and

care for being understood by it, should not be confused with yielding

to its demands.

So, this means that a judge must be independent also of public

opinion. It is not by accident that a provision in one of the Roman con-

stitutions read that “the hollow and vain voices of the mob should not

15. See Marek Safjan,

Wyzwania dla państwa prawa

[Challenges for a State ruled by law],

Warsaw, 2007, pp. 81-82.

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be heeded” (vanae

voces populi non sunt audiendae)

. If judges had

followed such voices – as Professor Juliusz Makarewicz said – “we would

probably still be burning witches at the stake”

To be a judge is also to offer the parties to the proceedings one’s

moderate temperament, to be equally loyal towards each participant

in the proceedings. This means understanding people, their emotions,

interests and hopes. Here a judge must be able, in difficult moments,

when a case is heard, to use skilfully his authority, not to lecture, and,

in particular, not to treat people in an arrogant manner

. Because if a

judge cannot do this, then what is the worth of his respect for the dignity

of every person, be he even the worst man?

To be able to hold thoroughly the public office entrusted to him, a

judge must also be a courageous person. He has to have the courage

to take a different stand from that of others, including other members

of the bench, if he is convinced that there are more arguments for his

opinion than for others’ opinions.

Courage is also indispensable for a judge to perform his duty of

being independent. He who lacks courage will yield to all kinds of pres-

sure, be it political, community-related or ideological. A courageous

judge applies the law in a manner independent of what others expect

of him. As a dignified example of this, I would mention some of the

judges who adjudicated during martial law in Poland in matters of polit-

ical crimes. Next to obedient judges, who were part of the apparatus of

political repression, there were also those who acquitted the initiators of

peaceful opposition against the regime

. The courage of those judges

restored the law’s authority and dignity. In their hands, the law was what

it was supposed to be: a tool allowing people to be protected from

abuse by public authority.

A courageous judge must also be able to step down, to leave the

profession, if his presence in the corps of judges would legitimise an

authoritarian regime. A Polish judge who, in 1980, joined the peaceful

“Solidarność” movement, then about a year later, when the Communist

16. See Agnieszka Kacprzak, Jerzy Krzynówek, Witold Wołodkiewicz,

Rugulae iuris. Łacińskie

inskrypcje na kolumnach Sądu Najwyższego Rzeczypospolitej Polskiej

[Rugulae

iuris.

Latins

Inscriptions on the columns of the Supreme Court of the Republic of Poland], Warsaw,

2006, pp. 92-93.

17. Lech Gardocki,

Naprawdę jesteśmy trzecią władzą

[We really are the third power], Warsaw,

2007, p. 119.

18. Aharon Barak,

The Judge in a Democracy,

Princeton University Press, 2006, p. 311.

19. See, for example, Maria Stanowska, Adam Strzembosz,

Sędziowie warszawscy w czasie

próby

1981-1988 [Warsaw-based judges during the time of test, 1981-1988], Institute of

National Remembrance,Warsaw, 2005, pp. 255-57.

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Party declared a war against society, was interrogated by military

supervisors, could either withdraw from “Solidarność” and condemn

his political “error”, or defend his attitude and the principles of a free-

dom-loving movement and sentence himself to banishment from the

judiciary. Each of those judges was faithful to the judge’s oath that he

had taken: to conscientiously guard the law. The decree on martial law

of December 1981 was an unlawful act, even in the light of the com-

munist Constitution. Every courageous judge who left the courts or was

removed from the judiciary delegitimised the regime and throughout

the 1980s became a role model for the judges who stayed on the side-

lines and for the judges who were just entering the profession. A regime

usually steps back when confronted with a courageous judge

. There

is some power in the profession of a judge that holds back even politi-

cal hooligans.

A judge of the Supreme Court or a judge of the Constitutional Court

is often, even against his will and against his temperament, a public

person. Judges of these tribunals have an essential impact on the quality

of constitutional democracy. Through their judgments, they shape the

boundaries of this democracy and the values that govern it, while pro-

tecting the fundamental rights of each human being. It may happen

that this causes irritation among political leaders who demonstrate an

authoritarian inclination. They perceive such a state of affairs as a threat

to their authority. Their irritation focuses usually on the presidents of

the Supreme Court or the Constitutional Court. That these judges are

guardians of the value of constitutional democracy, they perceive as an

intolerable state of affairs. Such leaders try, either themselves or through

their adjutants, to force the president of the court to resign, by fair means

or foul. The mere fact of not succumbing to the pressure is perceived

by them – rather erroneously – as delegitimising their authority. The

history of such tensions shows that judges and presidents of such courts

have had sufficient courage and determination to protect the integrity

of their courts. Usually, the best solution for such tension has been to

develop a better understanding of the authorities and their functions.

A well-organised State, with a strong legislative and a strong executive

authority, requires equally strong courts.

To be a judge – a good judge – you have to constantly demand a

lot from yourself. It is, however, worth the trouble, because he who is

an expert lawyer and, as also happens several times in a judge’s career,

an artist of law, is an important actor – which particularly applies to a

20. Ibid.; Hans Petter Graver,

Judges Against Justice. On Judges When the Rule of Law is Under

Attack,

Springer-Verlag Berlin, Heidelberg, 2015, pp. 259-70.

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constitutional judge – in the protection of constitutional democracy and

of its foundations. To be a judge means to be an individual who is – at

the very least – fair, independent, courageous, sensitive, humble and

kind, and who is constantly learning, and, for that matter, not only from

the books of law. Such a judge is – to quote Cicero – entitled to say “let

arms yield to the toga” (cedant

arma togae)

, and – by the same token –

demand that strength and violence yield to law.

Let us then pose the question as to what kind of satisfaction a judge

may expect from meeting these tough requirements, from subordinat-

ing his life to the profession of judge. There is no doubt that a good

judge may find an interest in expecting the reverence that will surround

him, in personal satisfaction on account of his impartiality in the applica-

tion of the law, and in the ensured high material status. The less heroism

a specific system of law or a social system demands of a judge, the better

both this law and this system will be.

21. Agnieszka Kacprzak, Jerzy Krzynówek, Witold Wołodkiewicz, op. cit., p. 103.

Annual Report 2016

Overview of the Court’s case-law

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Chapter 3

Overview of the

Court’s case-law

This Overview contains a selection by the

Jurisconsult of the most interesting cases from 2016.

here were significant developments to the case-law in 2016

. The

Grand Chamber delivered twenty-seven judgments. It examined

the concept of “jurisdiction” within the meaning of Article 1 of

the Convention (Mozer) and, under Article 2, clarified the extent of the

procedural obligation to carry out an investigation into the use of lethal

force by State agents (Armani

Da Silva).

Several judgments dealt with

immigration cases. In two of these, the Grand Chamber elucidated the

State’s procedural obligations under Articles 2 and 3 when examining

asylum requests (F.G.

v. Sweden)

and the distribution of the burden of

proving a “real risk” of treatment proscribed by Article 3 in the event of

expulsion

(J.K. and Others v. Sweden).

The

Paposhvili

judgment made an

important contribution to the case-law governing the compatibility of

the deportation of a seriously ill foreigner with Articles 3 and 8 of the

Convention. The

Khlaifia and Others

judgment was delivered against

the backdrop of a major migration and humanitarian crisis. It examines

the rights of migrants in this context under Articles 3, 5 and 13 of the

Convention and under Article 4 of Protocol No. 4.

The Grand Chamber set down specific standards for the protection

of the health of juvenile detainees under Article 3 (Blokhin), and

established the principles and standards regarding minimum personal

space per detainee in multi-occupancy cells (Muršić). It further refined its

case-law on irreducible life sentences (Murray).

Under Article 5 § 1, the Grand Chamber examined the lawfulness

of orders made by the courts of an unrecognised entity (Mozer), and

1. The Overview has been drafted by the Directorate of the Jurisconsult. It is not binding

on the Court.

Annual Report 2016

Overview of the Court’s case-law

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the placement of a minor below the age of criminal responsibility

in a juvenile detention centre (Blokhin). It developed the case-law

under Article 5 § 3 with a view to reinforcing the protection against

unreasonably long periods of pre-trial detention (Buzadji).

With respect to Article 6 § 1, it confirmed that the

Vilho Eskelinen

criteria apply to disputes concerning judges and emphasised the

growing importance of procedural fairness in cases involving the removal

of judges (Baka). A number of cases concerned the proportionality of

restrictions imposed on the right of access to a court (Al-Dulimi

and

Montana Management Inc., Baka

and

Lupeni Greek Catholic Parish and

Others).

The Grand Chamber examined issues relating to legal certainty

and the right to a hearing within a reasonable time in the case of

Lupeni

Greek Catholic Parish and Others;

the recognition and enforcement of

foreign judgments in civil cases in

Avotiņš;

and, in

Lhermitte,

the reasons

given by an assize-court jury for convicting a defendant. The

Blokhin

judgment comprehensively addressed, and in some respects developed,

the procedural rights of juveniles under Article 6. As regards the right

of access to a lawyer during police questioning, the Grand Chamber

clarified the two stages of the

Salduz

test and the relationship between

them in the

Ibrahim and Others

judgment, which concerned measures

taken by the police in response to a terrorist attack. The judgment in

and B v. Norway

developed the Court’s case-law on the interpretation of

Article 4 of Protocol No. 7 (ne

bis in idem).

In the case of

Dubská and Krejzová

the Grand Chamber considered

the question of home births under Article 8, and in

İzzettin Doğan and

Others

the State’s obligation of impartiality and neutrality regarding

religious beliefs under Articles 9 and 14. For the first time, the Court

examined the extent to which a parliament is entitled to regulate

autonomously its own internal affairs and, in particular, to restrict the

expression rights of members of parliament in session (Karácsony

and Others).

It emphasised the importance of the independence and

irremovability of judges in a case concerning the freedom of expression

of judges (Baka). The Grand Chamber developed its case-law regarding

publication by the press of information protected by the secrecy of cri-

minal investigations (Bédat), and clarified the extent to which Article 10

guarantees a right of access to State-held information (Magyar

Helsinki

Bizottság).

In another case, it found that a domestic immigration measure,

regulating family reunification, had an indirect discriminatory impact

(Biao). It examined the impact of a reform of a disability pension scheme

on rights protected by Article 1 of Protocol No. 1 and provided further

guidance on the scope of that provision (Béláné

Nagy).

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Another issue examined by the Grand Chamber was the respondent

State’s continuing obligation to investigate even after an application has

been struck out (Jeronovičs). The Grand Chamber considered whether

or not to strike out the application in three expulsion cases (F.G.

Sweden, Khan

and

Paposhvili).

It struck out an application because the

representative in the Grand Chamber proceedings no longer had any

contact with the applicants (V.M. and

Others).

For the first time the Court examined the obligation for prisoners to

perform work in prison after reaching retirement age (Meier). Also for

the first time the Court addressed the implications for the presumption

of innocence of the parallel conduct of an official inquiry and criminal

proceedings dealing with the same matters (Rywin). It applied the

Schatschaschwili

principles in a case concerning the admission and use

of the incriminating conclusions of an absent expert (Constantinides)

and considered a case involving the imminent execution of a demolition

order (Ivanova

and Cherkezov).

It was also the first time that the Court

examined the compatibility of house arrest with the exercise of the right

to manifest one’s religion in community with others (Süveges). Among

other novel issues before the Court were the confinement of an accused

in a glass cabin during his trial (Yaroslav

Belousov),

and the revocation of

an applicant’s acquired citizenship (Ramadan).

The Court was critical of the delayed enforcement of a prison

sentence imposed on an accused who had been found guilty of a serious

assault (Kitanovska

Stanojkovic and Others),

of a failure by the criminal-

justice system to respond adequately to incidents of racism (Sakir and

R.B. v. Hungary),

and of a lack of appropriate medical care for a young

child staying with her mother in prison (Korneykova

and Korneykov).

Other important cases concerned the right of lawyers to exercise their

professional duties without being subjected to ill-treatment (Cazan), the

rights of minors who have been deprived of their liberty (Blokhin,

A.B.

and Others v. France

and

D.L. v. Bulgaria),

the procedural rights of persons

suffering from psychiatric disorders (Marc

Brauer),

the protection of

personality rights (Kahn), the right to protect one’s reputation (Sousa

Goucha)

and to be heard (Pinto

Coelho),

prisoners’ rights (Mozer,

Muršić,

Meier, Biržietis, Shahanov and Palfreeman

and

Kalda),

including the right

to medical treatment (Blokhin,

Murray, Cătălin Eugen Micu,

and

Wenner),

and the rights of asylum-seekers (F.G. v.

Sweden, J.K. and Others v. Sweden,

Khlaifia and Others

and

B.A.C. v. Greece),

of the disabled (Kocherov

and

Sergeyeva, Guberina

and

Çam)

and of homosexual couples (Pajić,

Aldeguer Tomás

and

Taddeucci and McCall).

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The Court also considered cases concerning a search of the applicants’

home (K.S.

and M.S. v. Germany),

the right to demonstrate (Novikova

and

Others, Frumkin

and

Gülcü),

the use of satire in the press (Ziembiński)

and unlawful conduct by journalists

(Brambilla and Others),

the rights of

political parties (Cumhuriyet

Halk Partisi, Partei Die Friesen

and

Paunović

and Milivojević),

freedom of association (Geotech

Kancev GmbH),

trade-

union rights (Unite

the Union)

and welfare benefits and pensions (Béláné

Nagy, Di Trizio

and

Philippou).

Also of jurisprudential interest were cases on international arbitration

(Tabbane), expert medical evidence (Vasileva), an insured person’s

surveillance by her insurers (Vukota-Bojić) and conscientious objection

to military service (Papavasilakis).

There were developments too in the case-law on Article 5 § 4 (A.M. v.

France),

Article 7 (Bergmann,

Dallas

and

Ruban),

on the applicability of

Article 10 (Semir

Güzel),

Article 13 (Mozer and

Kiril Zlatkov Nikolov)

and

Article 18 (Navalnyy

and Ofitserov

and

Rasul Jafarov).

The Court explored the interaction between the Convention and

European Union law. In particular, the Grand Chamber developed the

case-law concerning the presumption of equivalent protection of

fundamental rights in the European Union (Avotiņš), relying on the case-

law of the Luxembourg Court. References were made to the EU Charter

of Fundamental Rights (Karácsony

and Others

and

Magyar Helsinki

Bizottság)

and to EU law on the mutual recognition of judicial decisions

(Avotiņš), on procedural rights in criminal proceedings (Ibrahim

and

Others),

on asylum proceedings (J.K.

and Others v. Sweden)

and on

family reunification (Biao). The Court also examined a case involving the

alleged defamatory content of a television programme broadcast from

another European country (Arlewin).

In a similar vein, the Court analysed the interaction between the

Convention and international law, interpreting the obligations arising

out of the Charter of the United Nations in the light of the Convention

obligations (Al-Dulimi

and Montana Management Inc.).

It used

international-law and Council of Europe norms as an aid for applying and

interpreting the Convention (in, for example,

Mozer, Blokhin, Biao, Baka,

J.K. and Others v. Sweden,

and

Magyar Helsinki Bizottság)

and referred

to decisions of international courts (in, for example,

Baka, Ibrahim and

Others,

and

Magyar Helsinki Bizottság).

Lastly, the Court further developed its case-law on the width of the

States’ margin of appreciation (in, among others,

Armani Da Silva, Karácsony

and Others

and

Dubská and Krejzová),

and on the extent of their positive

obligations under the Convention (in, for example,

Mozer

and

Murray).

Annual Report 2016

Overview of the Court’s case-law

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JURISDICTION AND ADMISSIBILITY

Jurisdiction of States (Article 1)

The

Mozer v. the Republic of Moldova and Russia

judgment concerned

the lawfulness of detention ordered by courts of the “Moldavian

Republic of Transdniestria” (“MRT”). The Grand Chamber examined the

issue of “jurisdiction” within the meaning of Article 1 of the Convention

with regard to the two respondent States.

Having been detained since 2008, the applicant was convicted

in 2010 of defrauding two companies and sentenced to seven years’

imprisonment, five of which were suspended. He complained under

Article 5 that his detention by the “MRT courts” had been unlawful. He

also complained of his treatment in detention under,

inter alia,

Articles 3,

8 and 9 of the Convention, read alone and in conjunction with Article 13.

The Grand Chamber found that Russia had violated Articles 3, 5, 8, 9

and 13 of the Convention and that there had been no violation of those

provisions by the Republic of Moldova.

In reaching that conclusion, it maintained its previous findings on

the jurisdiction of both respondent States as regards the “MRT” (Ilaşcu

and Others v. Moldova and Russia

Ivanţoc and Others v. Moldova and

Russia

and

Catan and Others v. the Republic of Moldova and Russia

As regards Russia, the Court confirmed that the “high level of

dependency on Russian support provided a strong indication that Russia

continued to exercise effective control and a decisive influence over the

‘MRT’ authorities”. The applicant therefore fell within Russia’s jurisdiction

within the meaning of Article 1 of the Convention.

As to the Republic of Moldova, the Court reiterated that, while it

had no effective control over the acts of the “MRT”, public international

law recognised Transdniestria as part of the Republic of Moldova’s

territory. This gave rise to positive obligations on it, under Article 1 of

the Convention, “to use all the legal and diplomatic means available to

it to continue to guarantee the enjoyment of the rights and freedoms

defined in the Convention to those living there”.

Mozer v. the Republic of Moldova and Russia

[GC], no. 11138/10, ECHR 2016.

3. See further under

Article 5

and

Article 13

below.

Ilaşcu and Others v. Moldova and Russia

[GC], no. 48787/99, ECHR 2004-VII.

Ivanţoc and Others v. Moldova and Russia,

no. 23687/05, 15 November 2011.

Catan and Others v. the Republic of Moldova and Russia

[GC], nos. 43370/04 and 2 others,

ECHR 2012 (extracts).

7. See also under

Article 5

below.

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Overview of the Court’s case-law

Page 38

Admissibility (Articles 34 and 35)

Locus standi

(Article 34)

The case of

Bulgarian Helsinki Committee v. Bulgaria

concerned the

applicant organisation’s standing to introduce applications on behalf of

deceased minors.

The applicant organisation, acting without a power of attorney,

introduced applications on behalf of two adolescents who died in

October 2006 and October 2007 in homes for mentally disabled

children. It learned about the conditions in the homes and the deaths

of the adolescents from a documentary broadcast on television in 2007.

The applicant organisation subsequently requested the authorities to

initiate criminal proceedings into the conditions in the homes and the

circumstances surrounding the deaths.

In the Convention proceedings, the applicant organisation alleged

a breach of, among other things, Articles 2 and 3 of the Convention,

contending that the lack of medical and other care in the homes had

contributed to the deaths of the children.

The applicant organisation was neither a direct nor indirect victim

of the alleged violation. The issue before the Court was whether it had

locus standi

to bring the applications. The Court’s inquiry was directed at

establishing whether the applicant’s situation could be considered to be

comparable to that of the applicant organisation in the case of

Centre for

Legal Resources on behalf of Valentin Câmpeanu v. Romania

. In that case

the Court had stressed that it was only in “exceptional circumstances”

that it would accept the standing of a party who was neither the direct

nor indirect victim of the violation(s) alleged. The Court accepted the

applicant organisation’s standing to bring proceedings without a power

of attorney for the following reasons (see §§ 104-11 of the judgment): the

vulnerability of Valentin Câmpeanu, who suffered from a serious mental

disability; the seriousness of the allegations made under Articles 2 and 3

of the Convention; the absence of heirs or legal representatives to bring

Convention proceedings on his behalf; the contact which the applicant

organisation had with Valentin Câmpeanu and its involvement in the

domestic proceedings following his death, during which it had not been

contested that it had standing to act on his behalf.

Bulgarian Helsinki Committee v. Bulgaria

(dec.), nos. 35653/12 and 66172/12, 28 June 2016.

Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania

[GC], no. 47848/08,

ECHR 2014.

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Overview of the Court’s case-law

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In the instant case the Court was of the view that these factors were

decisive for its examination of the question of the Bulgarian Helsinki

Committee’s standing.

The Court had no difficulty in accepting that the deceased minors,

both mentally disabled and abandoned by their mothers at birth, had

not been in a position to complain of the conditions in the care homes.

The allegations made on their behalf were serious. Moreover, it found

on the facts that, even if the minors’ mothers remained under domestic

law their legal representatives, there had never existed any link between

them. In essence, there was no one who could look after their interests,

and thus no one who could bring Convention proceedings on their

behalf. To that extent, their situation was comparable to that of Valentin

Câmpeanu. However, it differed in the following two respects. Firstly, the

applicant organisation had never had any contact with the minors prior

to their deaths. It only became involved in the domestic investigation

four to five years later, and at a time when the prosecutor had already

taken decisions to discontinue the criminal proceedings. Its role was

limited to lodging requests with the prosecutor’s office to reopen the

investigations. Leaving aside the issue of

locus standi,

it is noteworthy

that the Court also alluded in this connection to the difficulties which

the acceptance of the application would have for the operation of

the six-month rule. Secondly, the applicant lacked formal standing

in the domestic proceedings, and had no right to challenge in the

courts the prosecutor’s discontinuation orders. The Court accordingly

concluded that the applications, unlike that lodged on behalf of Valentin

Câmpeanu, were incompatible

ratione personae

with the Convention

and therefore inadmissible.

The decision is noteworthy in that it illustrates the difficulties which

confront an applicant non-governmental organisation in persuading

the Court that “exceptional circumstances” exist such as to justify

allowing it to act on behalf of a deceased victim in the absence of a

power of attorney.

No significant disadvantage (Article 35 § 3 (b))

The

Kiril Zlatkov Nikolov v. France

case concerned the application of

the “no significant disadvantage” criterion to an applicant’s allegation of

discrimination with respect to fair-trial rights.

The applicant, a Bulgarian national, was charged with offences

relating to international prostitution. Given the nature of the offences,

the applicant’s interview before the investigating judge was not

10.

Kiril Zlatkov Nikolov v. France,

nos. 70474/11 and 68038/12, 10 November 2016.

Annual Report 2016

Overview of the Court’s case-law

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recorded on video. According to the relevant provisions of the Code of

Criminal Procedure at the material time, interviews automatically had to

be recorded regardless of the offence unless it fell within the following

categories: organised crime (the applicant’s case); terrorism; and threats

to fundamental national interests. The applicant succeeded in having

this provision declared unconstitutional with reference to the principle

of equality. However, the ruling of the Constitutional Court had no

impact on his case given that, as found by the Court of Cassation, the

ruling only benefited persons who were in the applicant’s situation after

the date of the publication of the ruling.

In the Convention proceedings, the applicant complained among

many other things that he had been discriminated against in the

enjoyment of his right to a fair trial, contrary to Article 14 of the

Convention read in conjunction with Article 6 and, under Article 13, that

he had no effective remedy to contest the discriminatory application of

the law to his own situation.

Having regard to the fact that the Constitutional Court had upheld the

applicant’s challenge to the constitutionality of the impugned provision,

the Court’s decision declaring the complaint under Article 14 combined

with Article 6 inadmissible pursuant to Article 35 § 3 (b) of the Convention

is of interest. For the Court, there was nothing to indicate that the fact that

the applicant’s interview had not been recorded had had any significant

consequences either for the fairness of his trial or for his own personal

situation. Moreover, respect for human rights did not require it to examine

the complaint since the issue raised by the applicant was of historical

interest only, in view of the aforementioned ruling of the Constitutional

Court. This conclusion is noteworthy since it illustrates the Court’s

willingness to give weight to the consideration that the circumstances

giving rise to the complaint submitted to it will not be repeated at the

domestic level, notwithstanding that the underlying issue has never been

addressed in its case-law. Finally, it noted that the applicant’s complaint

had been duly examined in the domestic proceedings.

“CORE” RIGHTS

Right to life (Article 2)

Effective investigation

The

Armani Da Silva v. the United Kingdom

judgment concerned the

criminal conviction of the police force, but not the individual police

officers, following a fatal shooting incident.

11.

Armani Da Silva v. the United Kingdom,

no. 5878/08, ECHR 2016.

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The applicant’s cousin was shot dead, in error, by Special Firearms

Officers while on the underground in London in the wake of a series

of bombs on the city’s transport network. An extensive investigation

was conducted and detailed investigation reports were published.

The decisions of the Crown Prosecution Service not to prosecute were

detailed and the inquest was comprehensive: both were the subject of

judicial review. While no individual officer was disciplined or prosecuted,

the Office of the Commissioner of Police of the Metropolis (“the OCPM”)

was found guilty of criminal charges under health and safety legislation.

Before the Court, the applicant complained under Article 2 of the

Convention of the failure to prosecute any individuals for her cousin’s

death. The Grand Chamber found no violation of the procedural limb of

that provision.

(i) It is worth noting that the judgment contains a comprehensive

outline of the procedural investigative requirements in cases concerning

the use of lethal force by State agents.

(ii) The judgment is interesting in that it clarifies precisely what the

Court meant in

McCann and Others v. the United Kingdom

by an “honest

belief [that the use of force was justified] which is perceived, for good

reasons, to be valid at the time but which subsequently turns out to

be mistaken”.

The Court did not adopt the stance of a detached observer

(objectively reasonable) but rather considered it should put itself in

the position of the officer, in determining both whether force was

necessary and the degree needed. It found that the principal question

was whether the person had an “honest and genuine” belief and, in this

regard, the Court took into account whether the belief was “subjectively

reasonable” (the existence of subjective good reasons for it). The Court

did also indicate that, if the use of force was found not to be subjectively

reasonable, it would have difficulty accepting that the belief was

honestly and genuinely held. It went on to conclude, contrary to the

applicant’s submission, that this Convention test was not significantly

different from the test of self-defence in England and Wales.

(iii) One of the more novel aspects of the case concerns the

prosecutorial decision not to prosecute any individual police officer in

addition to prosecuting the police force (the OCPM), a decision made on

the basis of the “threshold evidential test”. The test is “whether there was

sufficient evidence to provide a realistic prospect of conviction”: it is not

an arithmetical “51% rule” but asks whether a conviction is “more likely

12.

McCann and Others v. the United Kingdom

[GC], 27 September 1995, § 200, Series A no. 324.

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than not”. The prosecution found that there was insufficient evidence

against any individual officer to meet that test in respect of any criminal

offence. However, it identified institutional and operational failings

which resulted in the police force being prosecuted and convicted on

health and safety charges. The Court found that this did not breach the

procedural requirement of Article 2 of the Convention.

In so finding, the Court clarified that an aspect of its case-law had

evolved. While it had initially stated that an investigation should be capable

of leading to the “identification and punishment of those responsible”, the

case-law now recognised that the obligation to punish would apply only “if

appropriate” (see, for example,

Giuliani and Gaggio v. Italy

). As to whether

it was “appropriate” or not to punish the individual police officers, the

Court noted that it had never found to be at fault a prosecutorial decision

following an Article 2 compliant investigation (and the present one had

so complied) but that “institutional deficiencies” in the systems of criminal

justice and prosecution had led to such findings. The present applicant

had alleged one such deficiency: the threshold evidential test (whether

there was a “realistic prospect of conviction”) applied when deciding

whether or not to prosecute. The Court did not dispute the need for such

a test and, further, considered that the State should be accorded a certain

margin of appreciation in setting the threshold (it required balancing

competing interests and there was no relevant European consensus).

Having regard to other related domestic-law factors, it could not be

said that the threshold evidential test for bringing a prosecution was so

high as to fall outside the State’s margin of appreciation. The authorities

were entitled to take the view that public confidence in the prosecutorial

system was best maintained by prosecuting where the evidence justified

it and not prosecuting where it did not. The applicant had not therefore

demonstrated any “institutional deficiencies” which gave rise – or were

capable of giving rise – to a procedural breach of Article 2 concerning the

decision not to prosecute the individual officers.

In concluding on this question of individual or institutional

prosecutions, the Court reviewed the State’s overall response to the

shooting incident to find that it could not be said that any question of

the authorities’ responsibility was left in abeyance (unlike the position

Öneryildiz v. Turkey

). In particular, it noted that during the extensive

investigations both individual and institutional responsibility had been

considered, the prosecution deciding to prosecute the OCPM for the

detailed reasons given (including the accepted threshold evidential

13.

Giuliani and Gaggio v. Italy

[GC], no. 23458/02, ECHR 2011 (extracts).

14.

Öneryildiz v. Turkey

[GC], no. 48939/99, ECHR 2004-XII.

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test). The institutional changes recommended by the Independent

Police Complaints Commission had been made and it could not be

said that the fine imposed on the OCPM following its conviction was

manifestly disproportionate (that is, it was not too low). The next of kin

had been adequately involved and the Court noted the prompt

ex gratia

payments to them and the settlement of the civil proceedings.

***

The judgment in

Kitanovska Stanojkovic and Others v. the former Yugoslav

Republic of Macedonia

concerned the delayed enforcement of a

sentence imposed on an accused who had been found guilty of the

serious assault of the applicant.

The (first) applicant was very seriously injured during a robbery

of her home. Her husband, who was also attacked during the same

incident, later died from his injuries. The assailants were later convicted

of aggravated robbery and received prison sentences. However, one

of the assailants continued to live in the vicinity of the applicant’s

neighbourhood for a period of eighteen months before starting to serve

his sentence.

In the Convention proceedings the applicant complained that the

delayed enforcement of the prison sentence gave rise to a breach of

Article 2 of the Convention.

The Court agreed. It noted that the Article 2 procedural requirements

were satisfied as regards the establishment of the circumstances of the

incident and the identification and punishment of the perpetrators.

However, it considered that these requirements had been undermined

on account of the delayed enforcement of the custodial sentence, which

was entirely attributable to the competent authorities. It noted that the

notion of an effective investigation under Article 2 can also be interpreted

as imposing a duty on States to execute their final judgments without

undue delay. For the Court, “the enforcement of a sentence imposed in

the context of the right to life must be regarded as an integral part of the

procedural obligation of the State under this Article”.

Expulsion

The judgment in

F.G. v. Sweden

concerned the duty of an expelling State

to investigate an individual risk factor not relied upon by an applicant in

his or her asylum application.

15.

Kitanovska Stanojkovic and Others v. the former Yugoslav Republic of Macedonia,

no. 2319/14,

13 October 2016.

16.

F.G. v. Sweden

[GC], no. 43611/11, ECHR 2016.

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The applicant applied for asylum in Sweden citing his activities as an

opponent of the regime in Iran. While he had mentioned his conversion

(in Sweden) to Christianity during his asylum proceedings, he had

expressly refused to rely on this ground. His asylum claim was rejected.

His later request for a stay on deportation, this time relying on his

conversion, was refused as this was not “a new circumstance” justifying a

re-examination of his case.

The Grand Chamber considered that his expulsion to Iran would give

rise to a violation of Articles 2 and 3, not on account of risks associated

with his political past, but rather if his expulsion took place without an

assessment of the risks associated with his religious conversion.

(i) The first issue worth noting concerned the fact that the

deportation order expired after the Chamber judgment was delivered.

The Government therefore argued before the Grand Chamber that the

case should be struck out (Article 37 § 1 (c) of the Convention) or that

the applicant could no longer claim to be a victim (Article 34). While

the Grand Chamber was not convinced that the applicant had lost his

victim status, it observed that, in principle, it might not be justified

to continue its examination as it was clear the applicant could not be

expelled for a considerable time to come (Article 37 § 1 (c)). However,

“special circumstances concerning respect for human rights” required

the continued examination of the application: the case had been

referred to the Grand Chamber under Article 43 (a serious question of

interpretation) and it concerned important issues regarding the duties of

parties to asylum proceedings which would have an impact beyond the

applicant’s situation. The request to strike out the case was dismissed.

(ii) The main issue on the merits concerned the existence/extent of

any duty on the Contracting State to assess an individual risk factor which

had not been relied upon by the individual in his or her asylum claim.

The Grand Chamber reiterated that it was, in principle, for the individual

to submit, as soon as possible, his or her asylum claim together with the

reasons and evidence in support of that claim. It went on to outline two

clarifications of that principle.

In the first place, when an asylum claim was based on a “well-known

general risk, when information about such a risk is freely ascertainable

from a wide number of sources”, the Article 2 and 3 obligations on

the State were such that the authorities were required to carry out an

assessment of that general risk of their own motion.

Secondly, as regards asylum claims based on individual risk, Articles 2

and 3 could not require a State to discover a risk factor to which an

asylum applicant had not even referred. However, if the State had been

Annual Report 2016

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“made aware of facts relating to a specific individual” that could expose

him or her to a relevant risk of ill-treatment on expulsion, the authorities

were required to carry out an assessment of that risk of their own motion.

It is worth noting that, in the present case, the Court concluded

that there would be a violation of Articles 2 and 3 if the applicant were

to be returned to Iran without an

ex nunc

assessment by the Swedish

authorities of the consequences of his religious conversion, despite

the fact that on several occasions the applicant had been given the

opportunity to plead his conversion during the asylum claim, that he

had refused to do so during those initial proceedings and that he had

been legally represented throughout.

Prohibition of torture and inhuman or degrading

treatment and punishment (Article 3)

Inhuman or degrading treatment

The

Khlaifia and Others v. Italy

case concerned the arrival of the

applicants, three Tunisian economic migrants, on the island of

Lampedusa, their initial placement in a reception centre and subsequent

confinement on board two ships moored in Palermo harbour, followed

by their removal to Tunisia in accordance with a simplified procedure

under an agreement between Italy and Tunisia of April 2011. The

applicants complained under Articles 3, 5 and 13 of the Convention and

Article 4 of Protocol No. 4.

The Grand Chamber found a violation of Article 5 §§ 1, 2 and 4 and

of Article 13 in conjunction with Article 3, and no violation of the other

Articles relied upon.

The judgment explores in some detail the Convention rights of

immigrants against the background of the migration and humanitarian

crisis that unfolded in 2011, when events related to the “Arab Spring”

led to a mass influx of immigrants into certain States (here, the island of

Lampedusa) leading to significant pressures on the receiving State.

As regards Article 3 of the Convention, the judgment provides a

comprehensive overview of the case-law under Article 3 relative to the

treatment of migrants (including conditions of their detention and, in

particular, overcrowding).

In response to the Article 3 complaint, the Government argued

that due account should be taken of the exceptional humanitarian

17. See also under

Article 1

above,

Mozer v. the Republic of Moldova and Russia

[GC],

no. 11138/10, ECHR 2016; under

Article 2 (Expulsion)

above,

F.G. v. Sweden

[GC], no. 43611/11,

ECHR 2016; and, under

Article 8 (Private life)

below,

R.B. v. Hungary,

no. 64602/12, 12 April 2016.

18.

Khlaifia and Others v. Italy

[GC], no. 16483/12, ECHR 2016.

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emergency. On the one hand, the Grand Chamber referred to the

M.S.S.

v. Belgium and Greece

judgment, where the Court had confirmed that

the absolute character of Article 3 meant that the significant migration

challenges in issue could not absolve a State of its obligations under

Article 3 and should not therefore be taken into account. On the

other hand, the Grand Chamber went on to affirm in the present case

as follows.

“ While the constraints inherent in such a crisis cannot, in themselves,

be used to justify a breach of Article 3, the Court is of the view

that it would certainly be artificial to examine the facts of the case

without considering the general context in which those facts arose.

In its assessment, the Court will thus bear in mind, together with

other factors, that the undeniable difficulties and inconveniences

endured by the applicants stemmed to a significant extent from the

situation of extreme difficulty confronting the Italian authorities

at the relevant time.”

Degrading treatment

The

Cazan v. Romania

judgment concerned ill-treatment inflicted

on the applicant, a lawyer, when representing a client at police

headquarters. He had gone to the police station of his own accord with

a view to obtaining information about a criminal case against his client.

In the Convention proceedings, the applicant complained of a

sprained finger, allegedly caused by the police, which had required

several days’ medical care. The Government denied that any ill-treatment

had been inflicted by State agents.

The judgment is of interest in that it applies to Article 3 of the

Convention the general principles of case-law relating to the protection

of a lawyer (see, as a recent example,

Morice v. France

). The judgment

refers, in particular, to Recommendation Rec(2001)10 of the Committee

of Ministers of the Council of Europe on the European Code of Police

Ethics, adopted on 19 September 2001. The Court emphasised the right

of lawyers to exercise their professional duties without being subjected

to ill-treatment. It was thus incumbent “on the police to respect [their]

role, not to interfere unduly with their work, or to subject them to any

form of intimidation or petty annoyance … or, therefore, to any ill-

treatment”. The Court, applying the principles laid down in the

Bouyid

19.

M.S.S. v. Belgium and Greece

[GC], no. 30696/09, §§ 223-24, ECHR 2011.

20.

Cazan v. Romania,

no. 30050/12, 5 April 2016.

21.

Morice v. France

[GC], no. 29369/10, 23 April 2015.

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v. Belgium

judgment in the different context of persons taken by the

police to the station for questioning or an identity check, also ruled that

the burden of proof regarding the treatment of a lawyer representing a

client at a police station lay with the State.

***

The judgment in

Yaroslav Belousov v. Russia

concerned the applicant’s

confinement in a glass cabin during his trial.

During the first two months of hearings, the applicant, who had

been charged with public-order offences, and nine other accused were

confined in a very cramped glass cabin. In the ensuing three-month

period, the hearings were held in a different courtroom equipped

with two glass cabins, allowing the applicant and the other accused

more space.

In the Convention proceedings the applicant complained, among

other things, that his confinement as described amounted to degrading

treatment and had impaired his effective participation in the trial,

including contact with his counsel. He relied on Articles 3 and 6 of

the Convention.

The Court has condemned the confinement of accused persons in

metal cages during trial, having regard to its objectively degrading nature

(see

Svinarenko and Slyadnev v. Russia

). The judgment is noteworthy

in that this is the first time that the Court has had to address this

particular form of security arrangement in a courtroom for compliance

with Article 3. It is not without interest that glass installations are

used, mostly for security purposes, in courtrooms in other Contracting

States. The Court observed that, generally speaking, the placement of

defendants behind glass partitions or in glass cabins did not of itself

involve an element of humiliation sufficient to meet the minimum

level of severity, as is the case with metal cages. As to compliance with

Article 3, the main question for the Court was to determine whether

the overall circumstances of the applicant’s confinement attained, on

the whole, the minimum level of severity to enable it to fall within the

ambit of this provision. This required a factual assessment to be made. It

found a breach of Article 3 with respect to the first two months during

which the applicant and nine other defendants were kept for several

22.

Bouyid v. Belgium

[GC], no. 23380/09, ECHR 2015.

23.

Yaroslav Belousov v. Russia,

nos. 2653/13 and 60980/14, 4 October 2016, see also under

Article 6 (Defence rights)

below.

24.

Svinarenko and Slyadnev v. Russia

[GC], nos. 32541/08 and 43441/08, §§ 135-38, ECHR

2014 (extracts).

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hours, three days a week, in a glass cabin measuring 5.4 sq. m, and at

all times exposed to the public. This amounted to degrading treatment.

The Court reached a different conclusion as regards the subsequent

period of the applicant’s confinement. It observed that the two-cabin

arrangement allowed the applicant at least 1.2 sq. m of personal space,

thus avoiding the inconvenience and humiliation of overcrowding. The

conditions of confinement did not therefore attain the minimum level of

severity prohibited by Article 3.

Inhuman or degrading punishment

The judgment in

Murray v. the Netherlands

concerned the

de facto

irreducibility of a life sentence. In 1980 the applicant was convicted of

murder. Given the psychiatric evidence, the risk of reoffending and the

absence of a more suitable confinement solution, he was sentenced to

life imprisonment. His requests for a pardon were refused. A procedure

to review life sentences was introduced in 2011: his first review in 2012

was unsuccessful (owing to a continued risk of reoffending). In March

2014 he was pardoned on the ground of ill-health and released. The

applicant later passed away and the application was continued by his

son and sister.

He complained under Article 3 of the

de facto

irreducibility of his

life sentence and of the lack of a regime better suited to his mental

condition. Holding that his life sentence was

de facto

irreducible,

the Grand Chamber found a violation of Article 3 and that it was not

necessary to rule on his remaining Article 3 complaints.

This Grand Chamber judgment develops the Court’s case-law

concerning the need for life sentences to be, notably,

de facto

reducible

(Kafkaris

v. Cyprus

;

Vinter and Others v. the United Kingdom

; and,

notably,

Harakchiev and Tolumov v. Bulgaria

(i) The Grand Chamber found that a prisoner’s rehabilitation must

be programmed and facilitated from the outset for any review of a

life sentence to be considered useful and for that life sentence to be

considered

de facto

reducible. In particular:

– The Grand Chamber’s reasoning reflects the importance attached

to the rehabilitation of prisoners. Having noted rehabilitation as a

legitimate penological ground for imprisonment (Vinter

and Others,

25.

Murray v. the Netherlands

[GC], no. 10511/10, ECHR 2016.

26.

Kafkaris v. Cyprus

[GC], no. 21906/04, ECHR 2008.

27.

Vinter and Others v. the United Kingdom

[GC], nos. 66069/09 and 2 others, ECHR

2103 (extracts).

28.

Harakchiev and Tolumov v. Bulgaria,

nos. 15018/11 and 61199/12, ECHR 2014 (extracts).

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cited above), the Grand Chamber highlighted the increasing importance

of rehabilitation in the Court’s case-law outside of the

Vinter and Others

context (for example,

Dickson v. the United Kingdom

;

James, Wells and

Lee v. the United Kingdom

; and

Khoroshenko v. Russia

). While there

is no right to rehabilitation as such, prisoners should be allowed to

rehabilitate themselves. A prisoner sentenced to life had to have, in

particular, a real opportunity to make progress towards rehabilitation,

such that he or she had hope of one day being eligible for release.

Significantly, the Grand Chamber indicated that this could be

achieved by setting up and periodically reviewing an “individualised

programme” that would encourage the prisoner to rehabilitate himself

or herself with the aim of living a responsible life. Were the State not to

provide a life prisoner with such a real opportunity to rehabilitate himself

or herself, any review of his or her progress towards rehabilitation would

be undermined as would, consequently, the

de facto

reducibility of the

life sentence. The Grand Chamber found that there is, therefore, a positive

obligation on the State, drawn from Article 3, to provide “prison regimes”

to life prisoners which are compatible with the aim of rehabilitation and

which enable them to progress towards rehabilitation.

– This “individualised programmed” approach had a particular

application in the particular context of the present case. The applicant

was criminally responsible for his crime but had, nevertheless, certain

mental-health problems which meant that he risked reoffending. In those

circumstances, the State had to assess the treatment needs of prisoners

to facilitate their rehabilitation and reduce the risk of reoffending. If

prisoners are amenable to treatment, they should receive that treatment

(whether or not they ask for it), particularly when it amounts to, in effect,

a precondition for their possible future eligibility for release.

In short, life prisoners must be detained under such conditions,

and be provided with such treatment, as would give them a realistic

opportunity to rehabilitate themselves in order to have a hope of release.

A failure to do so could render the life sentence

de facto

irreducible.

(ii) As to the present case, the Grand Chamber found that the

treatment of the applicant’s mental-health problems constituted, in

practice, a precondition for him to have the possibility of progressing

to rehabilitation and reducing the risk of reoffending. The lack of any

treatment, and indeed the lack of any assessment of his treatment needs,

meant therefore that neither the pardon nor later review processes

29.

Dickson v. the United Kingdom

[GC], no. 44362/04, ECHR 2007-V.

30.

James, Wells and Lee v. the United Kingdom,

nos. 25119/09 and 2 others, 18 September 2012.

31.

Khoroshenko v. Russia

[GC], no. 41418/04, ECHR 2015.

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were, in practice, capable of leading to a conclusion that he had made

such significant progress that his continued detention would no longer

serve any penological purpose. His sentence was therefore not

de facto

reducible and there had therefore been a violation of Article 3.

Effective investigation

The judgment in

Sakir v. Greece

concerned a physical assault on the

applicant, an Afghan national, in the centre of Athens in 2009. The

applicant had left his country of origin for fear of persecution on account

of his political convictions and entered Greece without a residence

permit. He was attacked by an armed gang in the centre of Athens and

admitted to hospital with injuries inflicted by a sharp pointed object.

After his discharge from hospital he was detained pending expulsion

because he did not have a residence permit.

In the Convention proceedings, the applicant complained, among

other things, that the Greek authorities had failed to comply with

their obligation to carry out an effective investigation into the attack.

The Court found a violation of the procedural aspect of Article 3 of

the Convention.

The case is noteworthy because of the importance, in the Court’s

analysis, of the general context within which the attack on the

applicant took place. The Court took into account reports from various

international non-governmental organisations (NGOs) and from Greek

institutions which referred to a phenomenon of racist violence in

the centre of Athens since 2009, in particular in the district where the

applicant was attacked. These reports noted a recurring pattern of

assaults on foreigners by groups of extremists. In the instant case, the

Court found that the national authorities had been at fault as, even

though the assault had taken place in that district and bore the hallmark

of a racist attack, the police had failed to consider it in the light of the

reports but had instead treated it as an isolated incident. There was no

indication in the case file that any steps had been taken by the police

or the judicial bodies to identify possible links between the incidents

described in the reports and the assault on the applicant.

The criminal investigation had been inadequate in a number of

respects in terms of both establishing the circumstances in which the

assault had taken place and of identifying the attackers. The Court

reiterated that where there is suspicion that racist attitudes induced

a violent act it is particularly important for the official investigation to

32. See also

Jeronovičs v. Latvia

[GC], no. 44898/10, 5 July 2016, under

Article 37

below.

33.

Sakir v. Greece,

no. 48475/09, 24 March 2016.

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be pursued with vigour and impartiality, having regard to the need to

reassert continuously society’s condemnation of racism and ethnic

hatred and to prevent any appearance of collusion in or tolerance of

unlawful acts.

Expulsion

The judgment in

J.K. and Others v. Sweden

concerned the distribution

of the burden of proving a “real risk” that asylum-seekers would be ill-

treated in their country of origin.

The three applicants, a mother, father and their son, were Iraqi

nationals. The first applicant (the father) worked with American clients

and operated out of a US armed forces base in Iraq. He and his family

were the subject of serious threats and violence from al-Qaeda from 2004

to 2008: their daughter was murdered, the brother of the first applicant

was kidnapped and the first applicant was the subject of several murder

attempts, and was badly injured during one assault. The first applicant

left Iraq in 2010, and the second and third in 2011. They applied for

asylum in Sweden. Asylum was refused, after the domestic courts found

that the family had not been the subject of personal threats since 2008

when the first applicant stopped working for American clients so that

the threat from al-Qaeda was not so present and concrete as to justify

the granting of asylum.

The applicants complained to the Court that their removal to Iraq

would entail a violation of Article 3 of the Convention. The Grand

Chamber found that substantial grounds had been shown for believing

that the applicants would run a real risk of treatment contrary to Article 3

if returned to Iraq.

The Court’s analysis begins with a comprehensive and up-to-

date outline of the Court’s case-law in expulsion cases concerning an

alleged risk of ill-treatment in the country of origin including as regards:

ill-treatment by private groups; the principle of

ex nunc

evaluation

of the circumstances; the application of the principle of subsidiarity

in expulsion cases; membership of a targeted group (since the first

applicant belonged to a group of persons systematically targeted for

their relationship with the US armed forces); and the assessment of

the existence of real risk (inter

alia,

M.S.S. v. Belgium and Greece

, cited

34. See also

F.G. v. Sweden

[GC], no. 43611/11, ECHR 2016 under

Article 2 (Expulsion)

above.

35.

J.K. and Others v. Sweden

[GC], no. 59166/12, ECHR 2016.

36.

M.S.S. v. Belgium and Greece

[GC], no. 30696/09, ECHR 2011.

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above,

Saadi v. Italy

Sufi and Elmi v. the United Kingdom

Hirsi Jamaa

and Others v. Italy

, and

F.G. v. Sweden

, cited above).

It is as regards the distribution – between the asylum-seeker and

the immigration authorities in domestic asylum proceedings – of the

burden of proving a real risk of ill-treatment in the country of origin

that the case-law has been clarified. As a general rule, “an asylum-seeker

cannot be seen as having discharged the burden of proof until he or she

provides a substantiated account of an individual, and thus a real, risk of

ill-treatment upon deportation that is capable of distinguishing his or

her situation from the general perils in the country of destination”.

The Court clarified two matters in that regard, referring to relevant

materials of the United Nations High Commissioner for Refugees

(UNHCR)

and to the EU Qualification Directive

In the first place, it is the “shared duty” of an asylum-seeker and the

immigration authorities to ascertain and evaluate all relevant facts in

asylum proceedings. On the one hand, the burden remains on asylum-

seekers as regards their own personal circumstances, although the Court

recognised that it was important to take into account all of the difficulties

which an asylum-seeker may encounter in collecting evidence. On the

other hand, the general situation in another State, including the ability

of its public authorities to provide protection, had to be established

proprio motu

by the competent domestic immigration authorities.

Secondly, and as to the significance of established past ill-treatment

contrary to Article 3 in the receiving State, the Court reviewed its case-

law (R.C

v. Sweden

;

R.J. v. France

; and

D.N.W. v. Sweden

) in the light

of the Qualification Directive and UNHCR standards. It considered

that established past ill-treatment contrary to Article 3 would provide

a “strong indication” of a future, real risk of ill-treatment, although the

Court conditioned that principle on the applicant having made “a

generally coherent and credible account of events that is consistent

with information from reliable and objective sources about the general

37.

Saadi v. Italy

[GC], no. 37201/06, ECHR 2008.

38.

Sufi and Elmi v. the United Kingdom,

nos. 8319/07 and 11449/07, 28 June 2011.

39.

Hirsi Jamaa and Others v. Italy

[GC], no. 27765/09, ECHR 2012.

40.

F.G. v. Sweden

[GC], no. 43611/11, ECHR 2016.

41. The UNHCR

Note on Burden and Standard of Proof in Refugee Claims

and the UNHCR

Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status.

42.

Council Directive 2004/83/EC of 29 April 2004

as recast by

Directive 2011/95/EU of the

European Parliament and of the Council of 13 December 2011.

43.

R.C. v. Sweden,

no. 41827/07, 9 March 2010.

44.

R.J. v. France,

no. 10466/11, 19 September 2013.

45.

D.N.W. v. Sweden,

no. 29946/10, 6 December 2012.

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situation in the country in issue”. In such circumstances, the burden

shifted to the Government “to dispel any doubts about that risk”.

In the present case, the Court considered that such a “strong

indication” of future real risk did arise and that it was for the Government

to dispel any doubts about that risk. Finding the domestic asylum

decisions to be lacking in that respect and noting reports evidencing the

continued targeting of those who had collaborated with the occupying

powers in Iraq, the Court found that the applicants faced a real risk of

continued persecution on return to Iraq from which the Iraqi authorities

could not protect them and concluded that their deportation would

therefore give rise to a violation of Article 3 of the Convention.

***

The judgment in

Paposhvili v. Belgium

, which concerned the

deportation of a seriously ill foreigner, clarified the

N. v. the United

Kingdom

case-law.

The applicant, a Georgian national, faced deportation and a ban on

re-entering Belgium for ten years on public-interest grounds (he had

several criminal convictions). While in prison, he was diagnosed and

treated for serious illnesses (chronic lymphocytic leukaemia, hepatitis

C and tuberculosis). Since the domestic proceedings he brought to

challenge his removal on medical grounds were unsuccessful, he

complained to the Court of his proposed removal under Article 3 on the

ground that the necessary medical treatment either did not exist or was

not accessible in Georgia. The applicant died in June 2016.

The Grand Chamber found a violation of Article 3.

The case is important because it provides guidance as to when

humanitarian considerations will or will not outweigh other interests

when considering the expulsion of seriously ill individuals.

In particular, other than the imminent-death situation in

D. v. the

United Kingdom

, the later

N. v. the United Kingdom

judgment referred

to “other very exceptional cases” which could give rise to an issue under

Article 3 in such contexts. The Grand Chamber has now indicated (in

paragraph 183 of the

Paposhvili

judgment) how “other very exceptional

cases” is to be understood. It refers to

“situations involving the removal of a seriously ill person in which

substantial grounds have been shown for believing that he or

46.

Paposhvili v. Belgium

[GC], no. 41738/10, ECHR 2016, see also under

Article 8 (Family

life)

below.

47.

N. v. the United Kingdom

[GC], no. 26565/05, ECHR 2008.

48.

D. v. the United Kingdom,

2 May 1997,

Reports of Judgments and Decisions

1997-III.

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she, although not at imminent risk of dying, would face a real

risk, on account of the absence of appropriate treatment in the

receiving country or the lack of access to such treatment, of being

exposed to a serious, rapid and irreversible decline in his or her

state of health resulting in intense suffering or to a significant

reduction in life expectancy. The Court points out that these

situations correspond to a high threshold for the application of

Article 3 of the Convention in cases concerning the removal of

aliens suffering from serious illness.”

The Grand Chamber also clarified that that obligation to protect

was to be fulfilled primarily through appropriate domestic procedures

reflecting the following elements.

(i) The applicants should adduce evidence “capable of proving that

there are substantial grounds for believing” that they would be exposed

to a real risk of treatment contrary to Article 3 (F.G.

v. Sweden

, cited

above), it being noted that a certain degree of speculation is inherent in

the preventive purpose of Article 3 and that applicants are not required

to provide clear proof of their claim.

(ii) Where such evidence is adduced, it is for the authorities of the

returning State “to dispel any doubts raised by it” (ibid.). The impact

of removal on the persons concerned is to be assessed by comparing

his or her state of health prior to removal and how it would evolve

after removal.

In this respect, the State had to consider,

inter alia

(a) whether

the care generally available in the receiving State “is sufficient and

appropriate in practice for the treatment of the applicant’s illness so as

to prevent him or her being exposed to treatment contrary to Article 3”

(in this connection, the Grand Chamber specified that the benchmark is

not the level of care existing in the returning State); and (b) the extent

to which the individual would actually have access to such care in the

receiving State (the associated costs, the existence of a social and family

network, and the distance to be travelled to access the required care all

being relevant in this respect).

(iii) If “serious doubts” persist as to the impact of removal on

the person concerned, the authorities had to obtain “individual and

sufficient assurances” from the receiving State, as a precondition to

removal, that appropriate treatment will be available and accessible to

the person concerned (Tarakhel

v. Switzerland

49.

F.G. v. Sweden

[GC], no. 43611/11, § 113, ECHR 2016, see under

Article 2 (Expulsion)

above.

50.

Tarakhel v. Switzerland

[GC], no. 29217/12, ECHR 2014 (extracts).

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Since that domestic assessment had not taken place in the present

case, the applicant’s removal to Georgia would have given rise to a

violation of Article 3 of the Convention. It is worth noting that this is

the first case, since

D. v. the United Kingdom

(cited above), where the

proposed expulsion of a seriously ill applicant has led to a finding of a

violation of Article 3 of the Convention.

It is also interesting that the Grand Chamber left open the question

of whether the applicant’s heirs had a legitimate interest in pursuing

the application which the applicant had introduced before he died,

favouring rather the continuation of the proceedings on the basis that

respect for human rights so required (Article 37 § 1 of the Convention).

Detention

The case of

Blokhin v. Russia

concerned the placement of the applicant,

a minor, in a juvenile detention centre. He was suspected of having

extorted money from another minor. As he was only 12 years of age at

the material time, he was below the age of criminal responsibility and

so was not prosecuted. He was brought before a court, which ordered

his placement in a temporary detention centre for minor offenders for

a period of thirty days in order to “correct his behaviour” and to prevent

his committing any further acts of delinquency.

The Grand Chamber found,

inter alia,

a violation of Article 3 (on the

ground of inadequate medical treatment).

In so doing, it set down specific standards for the protection of the

health of juvenile detainees, drawing inspiration from European and

international standards

and providing, in particular, that a child should,

it appears systematically, be medically assessed for suitability prior to

placement in a juvenile detention centre.

51. See the review of the case-law at §§ 178-81 of the judgment. The case of

Aswat v. the

United Kingdom,

(no. 17299/12, 16 April 2013) referred to in the judgment, appears to have

been distinguished since the applicant in that case, who was suffering from mental-health

issues, was being extradited to a maximum-security prison in the United States of America

on charges of terrorist offences.

52.

Blokhin v. Russia

[GC], no. 47152/06, ECHR 2016.

53. See also

Article 5

and

Article 6

below.

54. Including the 1989

United Nations Convention on the Rights of the Child,

the

UN Standard

Minimum Rules for the Administration of Juvenile Justice

of 1985 (“the Beijing Rules”) and

the 1990

UN Rules for the Protection of Juveniles Deprived of their Liberty

(“the Havana

Rules”), as well as the 2008

European Rules for juvenile offenders subject to sanctions or

measures

and the 2010

Guidelines of the Committee of Ministers of the Council of Europe

on child-friendly justice.

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***

The

Muršić v. Croatia

judgment sets down principles and standards

under Article 3 of the Convention regarding minimum personal space

per detainee in a multi-occupancy cell.

During the applicant’s incarceration for one year and five months, he

was placed in four different cells where he had between 3 and 6.76 sq. m

of personal space. During certain non-consecutive short periods,

including one period of twenty-seven days, his personal space fell

slightly below 3 sq. m. He complained under Article 3 essentially of the

lack of personal space in prison. The Grand Chamber found a violation of

that provision as regards one period of detention (twenty-seven days)

during which the applicant had less than 3 sq. m of personal space.

This is the first Grand Chamber case which centrally concerns

minimum personal space per detainee in a multi-occupancy setting

It set down clear principles and standards for the assessment of

overcrowding and, in so doing, comprehensively reviewed and clarified

certain aspects of the Court’s case-law to date. The principles to be

applied are as follows.

(i) The Grand Chamber confirmed the relevant minimum standard

of personal space to be 3 sq. m. In so doing, it explained that, while it

remained attentive to the

Committee for the Prevention of Torture

and Inhuman and Degrading Treatment of the Council of Europe

(CPT)

minimum standard (of 4 sq. m), it did not consider the CPT standard to

be decisive mainly because of the different roles of the CPT (standard

setting aimed at future prevention) and of the Court (judicial application

of the absolute prohibition of torture and inhuman treatment in an

individual case, taking account of all of the circumstances). The Court

also clarified how to calculate the 3 sq. m (excluding in-cell sanitary

facilities and including furniture) and confirmed that the minimum

3 sq. m of personal space applied equally to detainees on remand

and prisoners.

(ii) Personal space below 3 sq. m gave rise to a “strong presumption”

of a violation of Article 3, which was rebuttable should the Government

demonstrate “factors capable of adequately compensating” for the

55.

Muršić v. Croatia

[GC], no. 7334/13, ECHR 2016.

56. Overcrowding was only one of the issues examined by the Grand Chamber in

Idalov v.

Russia

[GC], no. 5826/03, 22 May 2012, and in the other leading and pilot cases examined by

Chambers in

Orchowski v. Poland,

no. 17885/04, 22 October 2009; and

Norbert Sikorski v. Poland,

no. 17599/05, 22 October 2009;

Ananyev and Others v. Russia,

nos. 42525/07 and 60800/08,

10 January 2012;

Torreggiani and Others v. Italy,

nos. 43517/09 and 6 others, 8 January 2013;

Neshkov and Others v. Bulgaria,

nos. 36925/10 and 5 others, 27 January 2015; and

Varga and

Others v. Hungary,

nos. 14097/12 and 5 others, 10 March 2015.

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lack of personal space. In so finding, the Grand Chamber resolved a

divergence in its case-law by rejecting an approach suggesting that

personal space of less than 3 sq. m constituted an automatic violation of

Article 3 of the Convention.

(iii) This strong presumption could only be rebutted if three factors

were cumulatively met:

– the reductions in personal space to under 3 sq. m were “short,

occasional and minor”;

– such reductions were accompanied by sufficient freedom of

movement and adequate activities outside of the cell; and

– the detainee was confined in an “appropriate detention facility”

and there were no other aggravating aspects of the conditions of his or

her detention.

(iv) Finally, the Grand Chamber clarified the position as regards

personal space greater than 3 sq. m. Personal space between 3 and

4 sq. m would amount to “a weighty factor” in the Court’s assessment of

the adequacy of detention conditions, whereas personal space of more

than 4 sq. m would not give rise, of itself, to an issue under Article 3 of

the Convention.

In the present case, one period of detention (twenty-seven

consecutive days) in less than 3 sq. m was considered not to be “short”

and “minor”, so that the presumption of a violation of Article 3 was not

rebutted by the Government. However, the presumption of a violation

was rebutted as regards the other shorter periods of detention in less

than 3 sq. m: those periods were considered “short, occasional and

minor” and the Government had demonstrated appropriate out-of-cell

activities in an adequate detention facility (so the three cumulative

factors had been met).

***

The judgment in

Cătălin Eugen Micu v. Romania

concerned transmissible

diseases contracted in prison.

The applicant alleged, among other things, that he had caught

hepatitis C while in prison and that the competent authorities had

not fulfilled their obligation to provide him with appropriate medical

treatment. He relied on Article 3 of the Convention.

The Court found that there had been no violation of the Convention

as regards those specific complaints.

The judgment is noteworthy in that the Court examined the

question of the duties of the prison authorities in relation to prisoners

57.

Cătălin Eugen Micu v. Romania,

no. 55104/13, 5 January 2016.

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suffering from transmissible diseases, especially tuberculosis, hepatitis

and HIV/Aids. It noted that the spread of transmissible diseases should

be a major public-health concern, especially in prisons. For the Court it

would be desirable if, with their consent, prisoners could benefit, within

a reasonable time after being committed to prison, from free screening

for hepatitis or HIV/AIDS. The existence of such a possibility in the

present case would have facilitated the examination of the applicant’s

allegations as to whether or not he had contracted the disease in prison.

Although the disease in question was diagnosed when the applicant

was under the responsibility of the prison authorities, it was not possible

for the Court, in the light of the evidence, to conclude that this was the

result of a failure by the State to fulfil its positive obligations.

***

The judgment in

Korneykova and Korneykov v. Ukraine

concerned the

case of a pregnant mother who gave birth and breastfed her baby in

prison. In addition to examining the mother’s conditions of detention

and the fairness of her trial, the Court also considered the adequacy of

the medical care provided for her child, who spent nearly six months in

prison with her from the age of four days.

In her application to the Court the applicant complained that she had

been shackled to her bed during her stay in the maternity hospital, that

her conditions of detention and the food she received as a breastfeeding

mother were inadequate, and that she had been held in a metal cage during

the six court hearings she had attended both before and after giving birth.

She also complained that her son had not received proper medical care.

The Court found a number of violations of Article 3, including on

account of the inadequate medical care provided for such a young child.

The judgment thus concerned the situation of a newborn child

forced, by his very young age, to accompany his mother in prison during

her pre-trial detention. The Court referred to the relevant international

standards. It noted that even though the child was particularly

vulnerable and required close medical monitoring by a specialist there

were a number of inaccuracies and contradictions in his medical file,

particularly regarding the dates of his medical examinations. The Court

found it established that, as his mother had alleged, the child had gone

without any monitoring by a paediatrician for almost three months. That

in itself was sufficient to find a violation of Article 3 of the Convention.

58.

Korneykova and Korneykov v. Ukraine,

no. 56660/12, 24 March 2016.

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***

The judgment in

A.B. and Others v. France

concerned the placement of a

young accompanied child in administrative detention pending removal.

The applicants, a couple and their four-year-old child, were held

in administrative detention pending their removal to Armenia after

their request for asylum was refused. They alleged in the Convention

proceedings that the detention of their child gave rise to a breach of

Article 3 of the Convention. The Court agreed with the applicants. Its

judgment in this part is noteworthy for the following reasons.

The Court noted that the material conditions of the detention centre

were not problematic from the point of view of Article 3, even taking into

account the young age and hence vulnerability of the child (contrast

Popov v. France

). At the same time, it could not overlook the fact that the

centre was a source of anxiety for the child. It was close to a runway with

the result that children wishing to play outside were exposed to excessive

levels of noise. Moreover, the centre itself was stressful for the child given

the overall coercive atmosphere including the presence of armed police

officers and constant loudspeaker announcements. On top of this, he

also had to endure the moral and psychological distress of his parents in

a place of detention. It is of significance that the Court found that these

considerations were not of themselves sufficient for concluding that a

level of suffering had been reached amounting to a breach of Article 3

in respect of the child. For the Court, the key factor was the length of

time the child was subjected to such conditions. A brief period may be

tolerated, but beyond that a young child would in its view necessarily

suffer from the harmful consequences of the coercive environment

around it. It is interesting to note that the Court did not define the

meaning of a “brief period”. It found that the eighteen-day period which

the child had spent in the centre breached his rights under Article 3 (see

also

R.M. and Others v. France

where a violation was also found under

Article 3 in respect of a seven-month-old baby kept in administrative

detention pending removal with his parents for seven days).

The Court also found a breach of Article 5 §§ 1 and 4 with respect to

the child, and of Article 8 with respect to all three applicants. On these

points the reasoning follows in general the conclusions in the above-

mentioned

Popov

judgment.

59.

A.B. and Others v. France,

no. 11593/12, 12 July 2016.

60.

Popov v. France,

nos. 39472/07 and 39474/07, 19 January 2012.

61.

R.M. and Others v. France,

no. 33201/11, 12 July 2016.

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***

According to the

Wenner v. Germany

judgment, prison authorities are

under a procedural obligation to seek independent medical advice on

the appropriate treatment for drug-addicted prisoners.

The applicant prisoner was a long-term heroin addict. He complained

in the Convention proceedings of the refusal of the prison authorities

to provide him with drug-substitution treatment, which he claimed

was the only adequate response to his medical condition. He suffered

considerable pain and damage to his health as a result of having to

undergo abstinence-oriented drug therapy. The applicant criticised the

authorities’ failure to allow a doctor from outside the prison to examine

the necessity of treating him with drug-substitution medication,

which had proved successful when offered to him over the course of a

seventeen-year period prior to his imprisonment. The applicant relied

on Article 3 of the Convention.

The Court found that there had been a violation of Article 3. The

judgment is noteworthy for its comprehensive review of the Convention

case-law on prisoners’ health, in particular the scope of the State’s

positive obligations in this area. Its task was to determine whether

the respondent State had provided credible and convincing evidence

proving that an adequate assessment had been made of the type

of treatment appropriate to the applicant’s state of health and that

the applicant subsequently received comprehensive and adequate

medical care in detention. It noted, among other things, that: prior to

his detention, the applicant’s heroin addiction had been treated with

medically prescribed and supervised drug-substitution therapy from

1991 until 2008; the Federal Medical Association’s Guidelines for the

Substitution Treatment of Opiate Addicts clarified that substitution

treatment was a scientifically tested therapy for manifest opiate

addiction; and drug-substitution therapy was, in principle, available

outside and in prisons in Germany (as in the majority of member States

of the Council of Europe), and was actually provided in practice in prisons

in several

Länder

other than Bavaria where the applicant was detained.

It was significant for the Court that it was not only the doctors who

had prescribed the applicant drug-substitution therapy prior to his

detention who considered that treatment to have been necessary in

the applicant’s case. An external doctor commissioned by the prison

authorities, who had examined the applicant in person, had suggested

that the prison medical service reconsider granting the applicant drug-

62.

Wenner v. Germany,

no. 62303/13, 1 September 2016.

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substitution treatment. This view was confirmed by another external

doctor. There was therefore a strong indication that drug-substitution

treatment could be regarded as the required medical treatment for

the applicant, a long-term drug addict without any realistic chance of

overcoming his addiction and who had been receiving substitution

treatment for many years. This meant that the domestic authorities were

under an obligation to examine “with particular scrutiny” whether the

continuation of the abstinence-oriented therapy was to be considered

the appropriate medical response. For the Court, the respondent State

had failed to comply with that obligation. In paragraph 77, it noted

as follows.

“In these circumstances, the Court considers that in order to ensure

that the applicant received the necessary medical treatment

in prison the domestic authorities, and in particular the courts,

were required to verify, in a timely manner and with the help

of an independent doctor skilled in drug-addiction treatment,

whether the applicant’s condition was still adequately treated

without such therapy. However, there is no indication that the

domestic authorities, with the help of expert medical advice,

examined the necessity of drug-substitution treatment with regard

to the criteria set by the relevant domestic legislation and medical

guidelines. Despite the applicant’s previous medical treatment

with drug-substitution therapy for seventeen years, no follow-up

was given to the opinions expressed by external doctors … on

the necessity to consider providing the applicant again with drug-

substitution treatment.”

Prohibition of slavery and forced labour (Article 4)

Work required of detainees (Article 4 § 3 (a))

The judgment in

Meier v. Switzerland

concerned the obligation

for prisoners to perform work in prison after they have reached

retirement age.

The applicant, a prisoner, complained that he had reached the age of

retirement in Switzerland but was still required by law to perform work

in prison. He was sanctioned for his refusal to work. The applicant relied

in the Convention proceedings on Article 4 of the Convention.

The Court found that Article 4 had not been breached. This was

the first time that the Court had had to address a complaint of this

nature. In reaching its conclusion it had particular regard to whether

or not there existed a trend in the Contracting Parties in favour of the

63.

Meier v. Switzerland,

no. 10109/14, 9 February 2016.

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acknowledgment of the applicant’s claim. Its reasoning was also based

on the acceptability of the response given to the applicant’s complaint

by the domestic courts. Furthermore, as in earlier cases concerning

Article 4 (see

Stummer v. Austria

, and the cases cited therein), the Court

drew on the definition given by the

International Labour Organization

(ILO) Convention No. 29

as regards the notion of forced or compulsory

labour, namely “work or service which is exacted from any person under

the menace of any penalty and for which the said person has not offered

himself voluntarily”.

A key consideration for the Court was to ascertain whether the

work which the applicant had to perform was in effect “work required

to be done in the ordinary course of detention” within the meaning of

paragraph 3 (a) of Article 4 of the Convention, in which case it could not

be considered to be “forced or compulsory labour” within the meaning

of paragraph 2 of that Article.

The Court noted among other things that

(i) the aim of the obligation was to offset the harmful effects of long-

term imprisonment by providing a structure to a prisoner’s daily life;

(ii) the nature of the work to be performed was adapted to the age

and health of the prisoner, and the work required of the applicant duly

took account of his age and physical capacity to perform it;

(iii) the applicant was paid for the work;

(iv) a wide margin of appreciation should be accorded to the

respondent State in this area, notwithstanding the fact that the

European Prison Rules

could be interpreted in the sense that prisoners

of retirement age should be exempted from the obligation to work.

For the above principal reasons the Court found that the work

requirement was covered by Article 4 § 3 (a) and could not be considered

“forced or compulsory labour”.

Right to liberty and security (Article 5)

Lawful arrest or detention (Article 5 § 1)

The judgment in

Mozer

, cited above, concerned the lawfulness

of detention ordered by courts of the “Moldavian Republic of

Transdniestria” (“MRT”).

Having been detained since 2008, the applicant was convicted

in 2010 of defrauding two companies and sentenced to seven years’

imprisonment, five of which were suspended. He complained under

Article 5 that his detention by the “MRT courts” had been unlawful.

64.

Stummer v. Austria

[GC], no. 37452/02, ECHR 2011.

65.

Mozer v. the Republic of Moldova and Russia

[GC], no. 11138/10, ECHR 2016.

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The Grand Chamber found that Russia had violated Article 5 and that

there had been no violation of that provision by the Republic of Moldova.

The principal issue for the Grand Chamber was whether the

applicant’s detention ordered by the “MRT courts” could be considered

“lawful” within the meaning of Article 5 § 1 (c). In particular, the Court was

required to reconcile its recognition of the legal basis of the courts of the

“Turkish Republic of Northern Cyprus”

, on the one hand, with its finding

that there was no legal basis for decisions of the “MRT courts”, on the other

(Ilaşcu

and Others

, cited above, and

Ivanţoc and Others

, cited above).

The Court applied the test as expressed in

Ilaşcu and Others

(§§ 436

and 460). It noted that it had already been found in that case that the

relevant “MRT court” did not form part of a judicial system operating “on

a constitutional and legal basis reflecting a judicial tradition compatible

with the Convention”. It remained to verify whether this continued to be

valid in the present case. The Russian Government, which had effective

control over the “MRT”, had failed to submit information on the “MRT

court” system. There was, moreover, no basis for assuming that that

system reflected a judicial tradition compatible with the Convention

and similar to the one in the remainder of the Republic of Moldova

(the Court compared and contrasted the position in Northern Cyprus

in that regard, see

Cyprus v. Turkey,

cited above

). The Grand Chamber

concluded that its findings in

Ilaşcu and Others

were still valid so that

the “MRT courts” could not have ordered the applicant’s lawful arrest or

detention. His detention was therefore “unlawful” within the meaning of

Article 5 § 1 (c) of the Convention.

Having established that the Republic of Moldova had fulfilled its

positive obligation to take appropriate and sufficient measures to secure

the applicant’s Article 5 rights (by attempting to re-establish control over

the “MRT” and to ensure respect for the present applicant’s rights), it was

found not responsible for this unlawful detention. Given Russia’s effective

control of the “MRT”, its Convention responsibility was engaged so that

there had been a violation of Article 5 § 1 (c) of the Convention by Russia.

66.

Loizidou v. Turkey

(merits), 18 December 1996,

Reports of Judgments and Decisions

1996-VI;

Demopoulos and Others v. Turkey

(dec.) [GC], nos. 46113/99 and 7 others, ECHR 2010;

Foka v. Turkey,

no. 28940/95, 24 June 2008;

Protopapa v. Turkey,

no. 16084/90, 24 February

2009;

Asproftas v. Turkey,

no. 16079/90, 27 May 2010;

Petrakidou v. Turkey,

no. 16081/90,

27 May 2010; and

Union Européenne Des Droits de L’Homme and Josephides v. Turkey

(dec.),

no. 7116/10, 2 April 2013.

67.

Ilaşcu and Others v. Moldova and Russia

[GC], no. 48787/99, ECHR 2004-VII.

68.

Ivanţoc and Others v. Moldova and Russia,

no. 23687/05, 15 November 2011.

69.

Cyprus v. Turkey

[GC], no. 25781/94, § 237, ECHR 2001-IV.

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Minors (Article 5 § 1 (d))

The case of

Blokhin

, cited above, concerned the placement of the

applicant, a minor who had not reached the age of criminal responsibility,

in a juvenile detention centre.

The applicant, who was twelve years of age at the material time,

was arrested and taken to a police station on suspicion of having

extorted money from another minor. The authorities found that he had

committed offences punishable under the Criminal Code. However, no

criminal proceedings were initiated since he was below the statutory

age of criminal responsibility. He was brought before a court, which

ordered that he be placed in a temporary detention centre for minor

offenders for a period of thirty days in order to “correct his behaviour”

and to prevent his committing any further acts of delinquency.

The Grand Chamber found,

inter alia,

a violation of Article 5 § 1.

The Court found that the applicant’s detention was not for the

purpose of “educational supervision”, that it was not therefore within the

ambit of Article 5 § 1 (d) and, being otherwise not justified, was unlawful

and a violation of Article 5 § 1.

This finding is interesting in that the Court appears to have clarified

the meaning of “educational supervision”. Previous case-law indicated

that the notion of “educational supervision” was not to be “equated rigidly

with notions of classroom teaching” so that, in the context of a young

person in local-authority care, educational supervision had to “embrace

many aspects of the exercise … of parental rights for the benefit and

protection of the person concerned” (Bouamar

v. Belgium

;

Koniarska v.

the United Kingdom

;

D.G. v. Ireland

; and

P. and S. v. Poland

). Relying on

European and international standards in this field

, the Grand Chamber

clarified that “educational supervision” must nevertheless contain an

important core schooling aspect so that “schooling in line with the

normal school curriculum should be standard practice” for all detained

minors “even when they are placed in a temporary detention centre for a

limited period of time, in order to avoid gaps in their education”.

70.

Blokhin v. Russia

[GC], no. 47152/06, ECHR 2016.

71. See also

Article 3

above and

Article 6

below.

72.

Bouamar v. Belgium,

29 February 1988, Series A no. 129.

73.

Koniarska v. the United Kingdom

(dec.), no. 33670/96, 12 October 2000.

74.

D.G. v. Ireland,

no. 39474/98, § 80, ECHR 2002-III.

75.

P. and S. v. Poland,

no. 57375/08, § 147, 30 October 2012.

76. Including the 1989

United Nations Convention on the Rights of the Child,

the

Beijing

Rules

and the

Havana Rules,

as well as the 2008

European Rules for juvenile offenders

subject to sanctions or measures

and the 2010

Guidelines of the Committee of Ministers of

the Council of Europe on child-friendly justice.

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***

The judgment in

D.L. v. Bulgaria

concerned safeguards governing

detention for the purposes of educational supervision. The applicant,

who was a minor, was placed in a closed educational institution on

account of, among other things, her antisocial behaviour and the risk

that she would become further involved in prostitution. The placement

was ordered by a court following a hearing at which she was represented.

In the Convention proceedings, the applicant alleged, among other

things, that her placement was not in conformity with Article 5 § 1 (d) of

the Convention.

The judgment can be seen as an important contribution to the

Court’s case-law on juvenile justice (see also in this respect the recent

Grand Chamber judgment in

Blokhin

, cited above) and on the rights of

juveniles deprived of their liberty in circumstances foreseen by Article 5

§ 1 (d) of the Convention. The following points are worthy of note.

The judgment confirms the Court’s concern to ensure that

the placement of a minor in a closed educational institution is a

proportionate measure of last resort taken in his or her best interests

and that the nature of the regime complies with the aim of the

placement, namely to provide education. Its inquiry into these matters

was focused on the specific facts of the case, given that there was

some dispute over the nature of the relevant legislation in force at the

material time and the nature of the education on offer in the institution.

It highlighted the following factors: the applicant was able to follow a

school curriculum, had help with her difficulties in the classroom and

obtained a professional qualification. It concluded that the aim of the

placement was to provide for her education and protection, and not, as

claimed by the applicant, punitive in nature. It further noted that the

placement was ordered following an adversarial hearing during which

all possible options for dealing with the applicant’s behaviour and the

risks to which she was exposed were considered, having regard to what

was in her best interests. The Court concluded that there had been no

breach of Article 5 § 1.

Reasonableness of pre-trial detention (Article 5 § 3)

In the

Buzadji v. the Republic of Moldova

case, the Court established the

point from which the authorities are required to show, in addition to

77.

D.L. v. Bulgaria,

no. 7472/14, 19 May 2016.

78.

Blokhin v. Russia

[GC], no. 47152/06, ECHR 2016.

79.

Buzadji v. the Republic of Moldova

[GC], no. 23755/07, ECHR 2016.

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“reasonable suspicion”, other “relevant and sufficient” reasons to justify

pre-trial detention.

On 2 May 2007 the applicant was arrested and on 5 May 2007 he

was charged with attempted large-scale misappropriation of goods. On

the same day, a district court approved his pre-trial detention, which

was renewed until 20 July 2007 when he was placed under house

arrest. He was later acquitted of the charges to which the pre-trial

detention related.

The Grand Chamber found a violation of Article 5 § 3 given the

absence of “relevant and sufficient reasons” justifying the ordering or

prolonging of the applicant’s detention pending trial.

The case is interesting since the Grand Chamber has expressly

developed the Court’s case-law on the second limb of Article 5 § 3 (the

right to “trial within a reasonable time or to release pending trial”) given

its overlap with the first-limb guarantees (to “be brought promptly before

a judge or other officer authorised by law to exercise judicial power”).

Under the first limb of Article 5 § 3, an accused has the right to be

brought “promptly” before a judicial authority who will examine the

lawfulness of the detention and whether there is a reasonable suspicion

of guilt (namely, compliance with Article 5 § 1 (c)).

Under the second limb of Article 5 § 3, the case-law provides that

the “persistence of reasonable suspicion ... is a condition

sine qua non

for

the validity of the continued detention” but after a “certain lapse of time”

this no longer suffices so that other “relevant and sufficient” reasons to

detain a suspect are required (see

Letellier v. France

, which case-law

was reaffirmed by the Grand Chamber in, for example,

Labita v. Italy

and

Idalov v. Russia

). The Court had never, however, defined the length

of a “certain lapse of time” although it had recognised that that period

could be as short as a few days.

While the Grand Chamber confirmed that these limbs provided two

distinct legal guarantees, there were certain overlaps: the period started

to run for both from the moment of arrest; both required a judicial

authority to determine whether there were reasons justifying detention

and to order release if not; and in practice the application of both limbs

often overlapped, typically where the same judicial authority which

authorises detention under the first limb (“reasonable suspicion”) orders

at the same time detention on remand under the second limb (other

80.

Letellier v. France,

26 June 1991, § 35, Series A no. 207.

81.

Labita v. Italy

[GC], no. 26772/95, § 153, ECHR 2000-IV.

82.

Idalov v. Russia

[GC], no. 5826/03, § 140, 22 May 2012.

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“relevant and sufficient” reasons). This first appearance before a judge

constituted therefore a “crossroads” between both limbs.

Yet the moment from which the additional second-limb guarantees

are considered to apply remained vague, governed as it was by the

undefined “certain lapse of time”. Moreover, a comparative study

indicated that in the great majority of the thirty-one States surveyed the

relevant judicial authority was required to give relevant and sufficient

reasons either immediately or within days after arrest.

In order therefore to simplify and bring more clarity and certainty to

the case-law and thereby enhance protection against an unreasonably

long deprivation of liberty, the Grand Chamber considered there were

compelling arguments for synchronising the second-limb guarantees

with the first limb. Accordingly, it decided that the requirement on the

judge or other officer to give relevant and sufficient reasons for the

detention in addition to the persistence of reasonable suspicion should

already apply “at the time of the first decision ordering detention on

remand, that is to say, ‘promptly’ after the arrest”.

Applying this principle, the Grand Chamber went on to review the

initial detention order of 5 May 2007, as well as the subsequent renewals,

and concluded that there had been no relevant and sufficient reasons to

order and prolong the applicant’s pre-trial detention.

Review of lawfulness of detention (Article 5 § 4)

The judgment in

A.M. v. France

concerned the review of the lawfulness

of a short period of administrative detention and the scope of

such review.

The applicant was arrested on 7 October 2011 and placed in

administrative detention pending his removal to Tunisia. On 9 October

he introduced proceedings before the Administrative Court to challenge

the lawfulness of his detention. The hearing in his case was scheduled

for 1 p.m. on 11 October. However, at 4 a.m. that day he was removed

to Tunisia, before his case could be heard. The applicant’s lawyer, in his

absence, pursued the proceedings. The

Conseil d’État

ultimately rejected

his case.

The applicant complained in the Convention proceedings that

Article 5 § 4 had been breached: firstly, because his deportation should

have been suspended in order to allow his challenge to his deportation

to be determined; secondly, because of the failure of the domestic courts

to pronounce on the merits of his claim that his placement in detention

had been unlawful.

83.

A.M. v. France,

no. 56324/13, 12 July 2016.

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The Court found that Article 5 § 4 had been violated. The judgment is

of interest for the following reasons.

(i) The Court confirmed that the bringing of proceedings under

Article 5 § 4 to challenge the lawfulness under Article 5 § 1 (f ) of

administrative detention pending deportation did not have a suspensive

effect on the implementation of the deportation order.

(ii) The Court noted that in previous cases it had ruled that it was

unnecessary to examine a complaint under Article 5 § 4 where the

impugned detention was of a short duration (see

Slivenko v. Latvia

);

however it observed that the applicant’s detention had lasted from

7 October, 2011 the date of his arrest, to 11 October 2011, the date of

his expulsion; the complaint under Article 5 § 4 of the Convention had

therefore to be examined.

(iii) Having regard to the requirements which Article 5 § 4 imposes

when it comes to a review of the lawfulness of detention mandated by

Article 5 § 1 (f ) (Chahal

v. the United Kingdom

), the Court found that

the Administrative Court’s power of review was restricted in that it

could only check whether the authority which ordered the applicant’s

placement in detention had the competence to do so and had given

reasons for its decision, in particular as regards the necessity of the

measure. It was, however, unable under domestic law at the material

time to review the lawfulness of the arrest stage and whether in the

applicant’s case his arrest leading to his placement in detention had

been in accordance with the requirements of domestic law as well as

with the aim of Article 5, namely to prevent arbitrariness.

PROCEDURAL RIGHTS

Right to a fair hearing in civil proceedings (Article 6 § 1)

Applicability

The

Baka v. Hungary

judgment concerned access to a court by a judge

to challenge the termination of his mandate.

The applicant, a former judge of the European Court of Human Rights,

publicly criticised, in his capacity as President of the Hungarian Supreme

Court, proposed legislative reforms of the judiciary. Subsequent

constitutional and legislative changes resulted in the premature termin-

ation of his mandate as President and excluded the possibility of judicial

review of that termination.

84.

Slivenko v. Latvia

[GC], no. 48321/99, §§ 158-59, ECHR 2003-X.

85.

Chahal v. the United Kingdom,

15 November 1996, § 127,

Reports of Judgments and

Decisions

1996-V.

86.

Baka v. Hungary

[GC], no. 20261/12, ECHR 2016.

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In the Convention proceedings he mainly complained under Article 6

of a lack of access to a court and under Article 10 of a disproportionate

interference with his freedom of expression

. The Grand Chamber

found a violation of both Articles.

The judgment is interesting for its comprehensive review of the

relevant Convention case-law, as well as of pertinent European and

international standards on the independence and irremovability

of judges.

The Court confirmed the application to disputes concerning judges

of the

Vilho Eskelinen

criteria, according to which a State can exclude the

application of Article 6. Those criteria are: (a) the State’s national law must

have expressly excluded access to a court for a relevant post or category

of staff; and (b) that exclusion must be justified on objective grounds in

the State’s interest. (The judgment provided a useful review of the cases

concerning the application of those criteria to disputes concerning

judges.) As to the first

Eskelinen

criterion, the Court found that, prior

to the impugned legislative changes, the law had expressly provided a

court president with the right to have any dismissal reviewed by a court,

which judicial protection was in line with the various international and

Council of Europe standards on the independence of the judiciary and

on the procedural safeguards necessary on the removal of judges. That

the applicant’s access to a court had been impeded by the transitional

provisions of the new legislation did not amount to compliance with

the first

Eskelinen

criterion: the impugned measure itself could not

exclude the protection of Article 6. The Court also emphasised, in this

regard, that any such exclusion would have to comply with the rule of

law. To so comply, the exclusionary legal provision would have to be of

general application whereas that provision was individualised in the

present case. Accordingly, the Court found that the first of the

Eskelinen

criteria had not been satisfied and, since both criteria had to be fulfilled

to legitimately exclude the protection of Article 6, it concluded that

Article 6 § 1 applied to the dispute over the applicant’s mandate.

The Court was then able to deal briefly with the question of

compliance with Article 6 § 1. Since it was doubtful that the exclusion of

judicial review complied with the rule of law (see above) and given the

growing importance (in international and Council of Europe instruments,

as well as for international courts and bodies) of procedural fairness in

cases involving the removal of judges, the Court concluded that the

87. See under

Article 10 (Freedom of expression)

below.

88.

Vilho Eskelinen and Others v. Finland

[GC], no. 63235/00, ECHR 2007-II.

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exclusion of the applicant from any judicial review of the premature

termination of his mandate had violated his right of access to a court.

Access to a court

The judgment in

Al-Dulimi and Montana Management Inc. v. Switzerland

concerned access to a court to challenge the confiscation of assets

pursuant to UN Security Council Resolution 1483 (2003).

The first applicant was (according to the UN Security Council (UNSC))

Head of Finance for the Iraqi secret service under the regime of Saddam

Hussein. He was also the managing director of the second applicant

company. Following the invasion of Kuwait by Iraq in 1990, the UNSC

put in place a sanctions regime including Resolution 1483 (2003),

pursuant to which the applicants were “listed” (2004) and their assets

confiscated (2006) for later transfer to the Development Fund for Iraq.

The applicants unsuccessfully challenged the confiscation orders before

the Swiss courts, which considered that they were bound only to verify

that the applicants’ names were on the Sanctions Committee’s list and

that the assets belonged to them. The applicants complained under

Article 6 that this amounted to a disproportionate restriction on their

right of access to a court.

The Grand Chamber found that there had been a violation of the

applicants’ right of access to a court guaranteed by Article 6. There being

no causal connection between that finding and any damage, no award

was made under Article 41 of the Convention.

The judgment turned on the assessment of the proportionality of

the limitation on the applicants’ access to a court.

In the first place, the Court rejected the applicants’ argument that the

procedural rights contained in Article 6 of the Convention constituted

a norm of

jus cogens

so that Resolution 1483 (2003) lost the binding

character it derived from Article 103 of the UN Charter. While the right

to submit a civil claim to a judge was “one of the universally recognised

fundamental principles of law”, it was not a norm of

jus cogens

as defined

by the Vienna Convention on the Law of Treaties. Article 103 of the UN

Charter had not therefore been displaced by Article 6 of the Convention.

The next question was therefore whether there was a conflict

between Resolution 1483 (2003) and Article 6 of the Convention, in

which case it would have been relevant to determine the hierarchy of

Convention and UN Charter obligations having regard to Article 103 of

89. See also above

Baka v. Hungary

[GC], no. 20261/12, ECHR 2016.

90.

Al-Dulimi and Montana Management Inc. v. Switzerland

[GC], no. 5809/08, ECHR 2016.

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the UN Charter. The Government argued that the UNSC Resolution had

left them with no latitude so that there was a clear conflict of norms.

The novelty of this judgment is to be found in the Court’s response

to this argument. The Court considered that, since Article 24 § 2 of the

UN Charter required the UNSC to act in accordance with the purpose

and principles of the United Nations (including that of international

cooperation in promoting respect for human rights), there was a

presumption that the UNSC did not wish to impose any obligation

on States in breach of fundamental principles of human rights (the

Court cited,

mutatis mutandis,

Al-Jedda v. the United Kingdom

). Unless

therefore there was clear and explicit language in a resolution of the

UNSC that it intended States to act contrary to international human-rights

law, the Court had to presume, “in a spirit of systemic harmonisation”,

that there was no conflict of obligations capable of engaging Article 103

of the Charter. Consequently, if the UNSC Resolution in question was

ambiguous, the Court had, if possible, to interpret it in harmony with the

Convention so as to avoid any such conflict of obligations.

In the present case, and similarly to

Al-Jedda,

the Court considered that

nothing in Resolution 1483 (2003) explicitly prevented the Swiss courts

from reviewing, in terms of human-rights protection, the measures taken

at the national level pursuant to the Resolution. Where not explicitly

excluded, the Resolution had to be understood as authorising judicial

review to avoid any arbitrariness in its implementation, that standard of

review being considered to strike a fair balance between the competing

interests involved. Any implementation of the UNSC Resolution without

allowing judicial review of arbitrariness would engage the State’s

responsibility under Article 6 of the Convention. There being no conflict

between the UN Charter and Convention obligations, it was unnecessary

to consider the hierarchy of legal obligations to which Article 103 gave

rise or, indeed, whether the equivalent-protection test (Bosphorus

Hava

Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland

) should be applied.

The Court concluded by finding that the applicants had had no

opportunity to submit any evidence to the effect that their inclusion in

the Sanctions Committee list was arbitrary. That it was impossible for

them to challenge confiscation measures, pending for ten years, was

“hardly conceivable in a democratic society”. Neither could the delisting

procedures before the UN Sanctions Committee replace, or compensate

for, the lack of appropriate national judicial scrutiny having regard to

91.

Al-Jedda v. the United Kingdom

[GC], no. 27021/08, ECHR 2011.

92.

Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland

[GC], no. 45036/98,

ECHR 2005-VI.

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the “serious, reiterated and consistent” criticisms of those procedures

in many international quarters. There had therefore been a violation of

Article 6 of the Convention.

***

In its judgment in

Lupeni Greek Catholic Parish and Others v. Romania

the Court considered whether a substantive-law criterion could, even

when the interested parties have formal access to a court, amount to a

limitation on access to a court to which Article 6 would apply.

By legislative Decree no. 126/1990, Romania decided that the legal

situation of assets, which had been transferred from the Greek Catholic

Church to the Orthodox Church in 1948, would be determined by joint

committees made up of representatives of both Churches and those

committees would take into account “the wishes of the worshippers

in the communities in possession of [the] properties” (“worshippers’

wishes”). That Decree was amended in 2004 and 2005 to clarify, in

case of disagreement in the joint committee, that the party seeking

possession (the Greek Catholic Church) could bring judicial proceedings

in the courts under the ordinary law.

The applicant parish was dissolved and its property was transferred

to the Orthodox Church in 1948. The Greek Catholic applicants (parish,

diocese and Archpriesthood) brought restitution proceedings. The first-

instance court reviewed the title deeds and found in their favour. The

Court of Appeal and the High Court, reversing that finding, took into

account the worshippers’ wishes (that is, those of the Orthodox Church).

The applicants complained under Article 6, both alone and in

conjunction with Article 14, of a breach of their right of access to a

court, a breach of the principle of legal certainty and of the length of the

proceedings. The Grand Chamber found violations of Article 6 as regards

the reasonable-time requirement and the principle of legal certainty,

and no violation as regards the other complaints.

(i) The case is interesting from the point of view of Romania and,

notably, its legislative provisions concerning the sensitive socio-religious

and historical question of the restitution of Greek Catholic property

following the re-establishment of that Church in 1990. In particular,

following on from the 2010 case of

Sâmbata Bihor Greek Catholic Parish

v. Romania

, the Grand Chamber reviewed the application of the 2004

and 2005 amendments for compliance with Article 6. It found that the

reliance by the civil courts on the criterion of the worshippers’ wishes

93.

Lupeni Greek Catholic Parish and Others v. Romania

[GC], no. 76943/11, ECHR 2016.

94.

Sâmbata Bihor Greek Catholic Parish v. Romania,

no. 48107/99, 12 January 2010.

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(from Decree no. 126/1990) did not breach the applicants’ right of access

to a court (but did breach the principle of legal certainty, see under “Fair

trial” below).

(ii) The complaint concerning the right of access to a court is

noteworthy. The Grand Chamber had to consider whether an applicable

substantive-law criterion (the worshippers’ wishes) could, even when

the parties had formal access to a court, amount to a limitation on

access to which Article 6 applied, the argument being that reliance on

this criterion rendered inevitable the outcome of the proceedings (in

favour of the Orthodox Church).

The Grand Chamber reaffirmed its case-law (notably,

Z and Others v.

the United Kingdom

, and

Roche v. the United Kingdom

) that Article 6

had no application to substantive limitations on a right existing under

domestic law.

In particular, it was clear that the applicants had had full access

to a court: detailed examinations and reasoned decisions at three

levels of jurisdiction took place without any procedural bar being

invoked against them. It was equally clear that what was at stake (the

worshippers’-wishes criterion) was a qualifying substantive right.

The Grand Chamber reaffirmed that it could not create substantive

rights through the interpretation of Article 6 of the Convention. The

Grand Chamber thereby reaffirmed that the distinction between the

procedural and the substantive, fine as that might be, continued to

define the applicability of Article 6. The difficulties encountered by the

applicants in securing the return of the property, concerning as they

did the application of substantive law (worshippers’ wishes) unrelated

to any procedural limitation on their right of access to a court, led to a

finding of no violation of this aspect of Article 6 of the Convention.

***

The judgment in

Arlewin v. Sweden

related to a decision of the national

courts to decline jurisdiction in respect of the alleged defamatory

content of a transfrontier programme service.

The applicant attempted to bring a private prosecution and a claim

for damages for gross defamation against X, following the live broadcast

in Sweden of a programme in which he was accused of, among other

things, involvement in organised crime in the media and advertising

sectors. The Swedish courts declined jurisdiction. In their view, and

95.

Z and Others v. the United Kingdom

[GC], no. 29392/95, §§ 87 and 98, ECHR 2001-V.

96.

Roche v. the United Kingdom

[GC], no. 32555/96, § 117, ECHR 2005-X.

97.

Arlewin v. Sweden,

no. 22302/10, 1 March 2016.

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with reference to the relevant Swedish law, the programme had not

originated in Sweden. It had been sent from Sweden by satellite to a

British company which was responsible for the content of the programme

and thereafter uplinked to a satellite, which had in turn transmitted the

programme to viewers in Sweden. The court of appeal found that the

applicant had not established that the decisions concerning the content

of the programme had been taken in Sweden, and that the material

before it indicated that it would be possible for the applicant to bring

proceedings before a court in the United Kingdom.

In the Convention proceedings, the applicant essentially claimed

that he had been denied access to a court in Sweden for a determination

on the merits of his defamation action against X, in breach of Article 6 of

the Convention.

The Court found for the applicant. Its judgment is of interest in

that the Court had to address the relevance to its consideration of the

applicant’s complaint of two instruments adopted within the framework

of the European Union, namely the

European Union Audiovisual Media

Services Directive

(Directive 2010/13/EU) and the

Brussels I Regulation

(Council Regulation (EC) No. 44/2001). The Court was not convinced by

the Government’s argument that the Swedish courts’ jurisdiction was

barred under the terms of the Directive. It considered that the Directive

did not regulate the matter of jurisdiction when it came to defamation

proceedings arising out of the content of a transborder programme

service. Rather, jurisdiction under EU law was regulated by the Brussels I

Regulation, and having regard to the facts, it would appear that both the

United Kingdom and Sweden had jurisdiction over the subject matter of

the applicant’s case.

That being said, the circumstances of the case suggested that there

were strong connections between Sweden, on the one hand, and, on the

other, the television programme and the British company responsible

for the programme’s content and transmission to Sweden. The strength

of those circumstances made it possible to conclude that there was a

prima facie obligation on Sweden to secure to the applicant his right

of access to a court. The Court had regard, among other considerations,

to the following factors: the programme was produced in Sweden in

the Swedish language, was backed by Swedish advertisers and was to

be shown live to an exclusively Swedish audience. The alleged harm

to the applicant occurred in Sweden. For the Court, except for the

technical detail that the broadcast was routed via the United Kingdom,

the programme and its broadcast were entirely Swedish in nature. Even

though it was possible under the Brussels I Regulation, to require the

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applicant to bring proceedings before a court in the United Kingdom

could not be said in the circumstances to have been a reasonable and

practical alternative for him.

***

The decision in

Tabbane v. Switzerland

concerned the resolution of a

dispute by an international arbitration tribunal in Geneva with no right

of appeal to the courts.

The applicant, a Tunisian businessman domiciled in Tunisia, entered

into a contract with a French company based in France. The contract

included a clause requiring any disputes between the parties to be

referred to arbitration. By entering into the contract the applicant

expressly and freely waived any right to appeal to the ordinary courts

against the decision of the arbitration tribunal in the event of a dispute.

The French company subsequently lodged a request for arbitration

with the International Court of Arbitration of the International Chamber

of Commerce (ICC) in Paris. In accordance with the

ICC Rules,

the

applicant was able to appoint an arbitrator of his choice. That arbitrator

then agreed with the other two arbitrators that the arbitration would

take place in Geneva, with the result that Swiss law became applicable

to the arbitration proceedings. The arbitration tribunal found against the

applicant, who lodged an application for review with the Swiss Federal

Court. The Federal Court refused to examine the arbitration award,

considering that the parties had validly waived their right to appeal

against any decision issued by the arbitration tribunal in accordance

with the Federal Law on private international law.

The case concerned the right of access to a court for the purposes of

Article 6 § 1 of the Convention in the context of international arbitration.

The decision develops the case-law relating to voluntary waivers of

the right to appeal against an arbitration award. The Court found

that, having regard to the legitimate aim pursued and the applicant’s

contractual freedom, the restriction had not impaired the very essence

of his right of access to a court.

Fairness of the proceedings

The judgment in

Avotiņš v. Latvia

developed the case-law in two areas:

– the recognition and enforcement of a foreign judgment in a civil

case delivered in the country of origin without duly summoning the

defendant to appear and without securing his defence rights;

98.

Tabbane v. Switzerland

(dec.), no. 41069/12, 1 March 2016.

99.

Avotiņš v. Latvia

[GC], no. 17502/07, ECHR 2016.

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– with regard to EU law, the presumption of equivalent protection

(see

Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi,

cited above

100

and

Michaud v. France

101

) and the principle of mutual recognition of

judgments within the European Union.

By a judgment given in default of appearance, a Cypriot court ordered

the applicant, a Latvian national, to pay a contractual debt to a Cypriot

company. According to the applicant, he had not been duly informed

of the proceedings in Cyprus. The claimant then sought recognition

and enforcement of the Cypriot judgment in Latvia under the

Brussels I

Regulation.

Before the Latvian courts, the applicant tried to prevent the

judgment from being enforced, relying on Article 34 § 2 of the above-

mentioned Regulation, according to which a judgment given in default

in another member State could not be recognised if the defendant

had not been served with the document instituting the proceedings

in sufficient time and in such a way as to enable him to arrange for his

defence. However, the Latvian Supreme Court dismissed this argument,

stating that, since the applicant had not appealed against the judgment

in Cyprus, his objections lacked relevance.

The applicant alleged a violation of his right to a fair hearing

guaranteed by Article 6 § 1 of the Convention. The Grand Chamber

found no violation of Article 6 § 1. It considered that there had indeed

been a regrettable shortcoming because of the way in which the

Supreme Court had dealt with the prima facie serious issue raised by

the applicant. However, this shortcoming did not entail a violation

of Article 6 § 1 as the applicant had had a real opportunity to appeal

against the impugned judgment in Cyprus.

(i) The Grand Chamber judgment develops the Court’s case-law

concerning the presumption of equivalent protection of fundamental

rights by European Union law (known as the “Bosphorus presumption”,

first defined by the Court in

Bosphorus

and then clarified in

Michaud).

maintains the two conditions set forth in

Michaud,

that is, the “absence

of any margin of manœuvre” on the part of the domestic authorities

and the deployment of the full potential of the supervisory mechanism

provided for by EU law. With regard to the first condition, the judgment

gives a valuable indication as to how to interpret the “absence of any

margin of manoeuvre” in the case of an EU regulation which, unlike a

directive, is directly applicable in the member States. In order to know

whether the State authorities have a “margin of manœuvre” in applying

100.

Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland

[GC], no. 45036/98,

ECHR 2005-VI.

101.

Michaud v. France,

no. 12323/11, ECHR 2012.

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the specific provision at stake, regard must be had first and foremost

to the interpretation of this provision given by the Court of Justice of

the European Union (CJEU). As regards the second condition of the

Bosphorus

presumption, namely the deployment of the full potential

of the supervisory mechanism provided for by EU law in the specific

case, the judgment emphasises that this condition must be applied in a

flexible way and without excessive formalism. More precisely, it cannot

be understood as requiring the domestic court to request a preliminary

ruling from the CJEU in all cases without exception, including those

cases where no genuine and serious issue arises with regard to the

protection of fundamental rights by EU law, or those in which the CJEU

has already stated precisely how the applicable provisions of EU law

should be interpreted in a manner compatible with fundamental rights.

(ii) This is the first Grand Chamber judgment on the application of

the

Bosphorus

presumption to the mutual-recognition mechanisms

which are founded on the principle of mutual trust between the member

States of the European Union and are designed to be implemented with

a high degree of automaticity.

On the one hand, the judgment reasserts the legitimacy of these

mechanisms. On the other hand, it notes that their application in practice

can endanger the respect of fundamental rights. As the CJEU itself has

recently stated in Opinion 2/13 (paragraph 192, 18 December 2014,

“when implementing EU law, the Member States may, under EU law, be

required to presume that fundamental rights have been observed by

the other Member States, so that ..., save in exceptional cases, they may

not check whether that other Member State has actually, in a specific

case, observed the fundamental rights guaranteed by the EU”. This could

run counter to the requirement imposed by the Convention according

to which the court in the State addressed must at least be empowered

to conduct a review commensurate with the gravity of any serious

allegation of a violation of fundamental rights in the State of origin.

Therefore, the Court must satisfy itself that the mutual-recognition

mechanisms do not leave any gap or particular situation which

would render the protection of the human rights guaranteed by the

Convention manifestly deficient. In doing so it must verify, in a spirit of

complementarity, that the principle of mutual recognition is not applied

automatically and mechanically to the detriment of fundamental rights.

The Grand Chamber judgment explains the action that must be

taken by the domestic court in this context, namely, if a serious and

substantiated complaint is raised before the court to the effect that

the protection of a Convention right has been manifestly deficient and

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that this situation cannot be remedied by EU law, then it cannot simply

refrain from examining that complaint on the sole ground that it has to

apply EU law.

***

In its judgment in

Lupeni Greek Catholic Parish and Others

102

, cited

above, the Grand Chamber also considered,

inter alia,

whether there

had been a breach of the principle of legal certainty in view of the

conflicting decisions of the High Court regarding the interpretation of

the provisions of a legislative decree governing the legal situation of

assets which had been transferred from the Greek Catholic Church to

the Orthodox Church in 1948.

The Grand Chamber reviewed the criteria which guide the Court in

this respect (see, in particular,

Nejdet Şahin and Perihan Şahin v. Turkey

103

the Court must determine whether in the case-law of the national courts

“profound and long-standing differences exist”, whether domestic

law provides for a mechanism to overcome these inconsistencies, and

whether that mechanism has been applied and, if appropriate, to what

extent. In the present case, the Grand Chamber found that the relevant

legislative decrees were not clear as to whether the worshippers’-

wishes criterion could be applied during the proceedings before the

civil courts, that, until 2012, the High Court had delivered judgments

which were “diametrically opposed”, and that there had been a failure to

use promptly the mechanism foreseen under domestic law. There had

therefore been a breach of the principle of legal certainty guaranteed by

Article 6 of the Convention.

Right to a fair hearing in criminal

proceedings (Article 6 § 1)

Access to a court

The case of

Marc Brauer v. Germany

104

concerned the refusal to consider

an appeal against an order placing the applicant in a psychiatric hospital,

on account of a failure to comply with the one-week deadline prescribed

by law.

The applicant’s confinement in a psychiatric hospital had been

ordered at first instance on the grounds that he could not be held

criminally responsible for the offences with which he was charged and

that he was mentally ill. While the judgment was being delivered, the

102.

Lupeni Greek Catholic Parish and Others v. Romania

[GC], no. 76943/11, ECHR 2016.

103.

Nejdet Şahin and Perihan Şahin v. Turkey

[GC], no. 13279/05, 20 October 2011.

104.

Marc Brauer v. Germany,

no. 24062/13, 1 September 2016.

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applicant became very agitated. He stated that he wished to change his

lawyer and to appeal against the decision himself. The presiding judge

gave him express instructions on when and how to lodge an appeal. A

few days later, the applicant’s lawyer sent him written instructions on the

procedure to be followed. The applicant drew up and signed a notice of

appeal. The court dismissed the appeal as out of time and reiterated the

oral instructions given by the presiding judge. The applicant challenged

that rejection, indicating that he had misunderstood the instructions

with regard to the appeal procedure. He was unsuccessful. The Federal

Court of Justice placed decisive weight on the instructions given by the

judge. It found no evidence that the applicant had not understood them

on account of his mental illness. He was therefore responsible for the

situation in question.

In the Convention proceedings, the applicant argued that he had not

understood the instructions given by the judge on account of his mental

state, and that he had been misled by the lawyer’s instructions.

The Court held that there had been a violation of Article 6 § 1 of the

Convention for the following reasons.

(i) The applicant, who had been deprived of his liberty and was

confined in a psychiatric hospital on account of his mental health, had

been particularly vulnerable.

(ii) In spite of this, his lawyer had taken no steps to verify whether he

was indeed capable of lodging an appeal alone, his intention of doing

which he had clearly stated.

(iii) The written instructions from the lawyer were potentially

misleading, so that a lay person could have understood them in the

same way as the applicant.

(iv) The applicant had been diligent in sending off the notice of

appeal, which was posted five days prior to the expiry of the statutory

time-limit; the subsequent delay was attributable to the postal service

(whose resources were strained over the Christmas period) and to

the courts.

This judgment is interesting with regard both to the specific situation

of litigants or defendants suffering from psychiatric problems and, more

generally, to the practical circumstances that are likely to delay the

registration of an appeal by any person involved in court proceedings.

As a general rule, legal certainty and the proper administration of

justice required compliance with procedural time-limits. Nonetheless, it

was necessary to envisage exceptional cases and be flexible in order to

ensure that the right of access to a court was not unduly restricted. It

was for the national courts to assess the situation as a whole and to take

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into account the exceptional factors that had affected the lodging of the

appeal in due form. There could be an accumulation of adverse factors

which, in practice, explained the delay and consequently the degree of

negligence attributable to the appellant.

Fairness of the proceedings

In its judgment in

Lhermitte v. Belgium

105

the Grand Chamber developed

the principles established in

Taxquet v. Belgium

106

concerning the reasons

given by an assize-court jury for convicting a defendant.

While experts had initially considered the applicant to be criminally

responsible for her acts (she had killed her five children), new evidence

came to light at the trial which led the experts to unanimously conclude

that she was not criminally responsible. The assize-court jury (twelve

lay members) concluded to the contrary, finding – through “yes” or “no”

responses to three of the five short questions put to it – that she was

criminally responsible and guilty.

She complained under Article 6 that she could not understand the

reasons why the jury had so decided. The Grand Chamber found that

there had been no violation of Article 6 of that provision.

The Grand Chamber applied the

Taxquet

principles (as summarised

Agnelet v. France

107

) to the particular facts of the case. The judgment

is noteworthy in that the Grand Chamber accepted that the reasons for

the jury’s decision can be gleaned from sources other than the jury itself

and, in this case, from the later sentencing decision of the assize court

and the judgment of the Court of Cassation.

Since the applicant did not deny that she had carried out the

killings, the main issue at the trial was whether she was criminally

responsible and this was the very point on which the jury had, without

giving reasons, not followed the unanimous view of the experts. The

issue to be determined, following

Taxquet,

was whether the applicant

had, nevertheless, been able to understand the reasons why the jury

had concluded as it did. Noting that compliance with Article 6 was to

be established on the basis of the trial as a whole, the Grand Chamber

considered that certain factors should have dispelled the applicant’s

doubts as to the jury’s belief of her criminal responsibility. Her criminal

responsibility was the central focus of the investigation and trial. Certain

relevant reasons were contained in the sentencing judgment, which had

been adopted by twelve members of the jury with three professional

105.

Lhermitte v. Belgium

[GC], no. 34238/09, ECHR 2016.

106.

Taxquet v. Belgium

[GC], no. 926/05, ECHR 2010.

107.

Agnelet v. France,

no. 61198/08, 10 January 2013.

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judges the following day: while those sentencing judges were not

part of the jury, they had been able to obtain the observations of the

jury members who sat with them while deliberating on the sentence

and who signed the sentencing judgment, and the three professional

judges had been present throughout the trial. The experts themselves

had acknowledged that their view was an “informed opinion” and not

a “scientific truth”. In such circumstances, the Court concluded that the

fact that the jury had not indicated the reasons which prompted them

to adopt a view on criminal responsibility contrary to the unanimous

expert opinions on the subject had not been capable of preventing the

applicant from understanding the decision of the jury against her.

It is worth comparing and contrasting a series of judgments in similar

cases against France adopted since

Taxquet

(including

Agnelet,

cited

above;

Oulahcene v. France

108

; and

Fraumens v. France

109

) in which the

Court, in finding a violation as the applicants could not have understood

the reasons for the jury decisions against them, took note of later

legislative reform (after the relevant facts of those cases) introducing

a “statement of reasons” form for assize-court juries. The later

Matis v.

France

110

decision indicated that this “statement of reasons” form was

capable of meeting the requirements of Article 6 of the Convention.

Presumption of innocence (Article 6 § 2)

The judgment in

Rywin v. Poland

111

concerned the impact of a parlia-

mentary commission of inquiry on the conduct of parallel criminal

proceedings relating to the same matters.

The applicant, a film director, became embroiled in a scandal arising

out of allegations that persons in power had engaged in corrupt practices

during parliamentary proceedings on the reform of Poland’s audio-

visual legislation. Criminal charges were brought against the applicant

in this connection. At the same time, Parliament set up a commission

of inquiry tasked with investigating the accuracy of the allegations

made against several politicians and senior officials. The applicant was

convicted in the criminal proceedings. While his appeal was pending,

the commission of inquiry, whose proceedings were conducted in

public, published its findings. The report identified by name certain key

figures who had sought to exploit their position of influence for financial

and political gain. The applicant was cited in the report as someone who

108.

109.

110.

111.

Oulahcene v. France,

no. 44446/10, 10 January 2013.

Fraumens v. France,

no. 30010/10, 10 January 2013.

Matis v. France

(dec.), no. 43699/13, 6 October 2015.

Rywin v. Poland,

nos. 6091/06 and 2 others, 18 February 2016.

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had assisted their corrupt endeavour. His appeal was dismissed and his

conviction became final.

In the Convention proceedings, the applicant complained among

other things that the publication of the parliamentary commission’s

report at a time when his conviction was not yet final had infringed his

right to be presumed innocent guaranteed by Article 6 § 2. The Court

found that that provision had not been breached.

The judgment is noteworthy in that this was the first time the Court

had had to address the implications for the presumption of innocence

of the parallel conduct of an official inquiry and criminal proceedings

dealing with the same background facts and circumstances. In previous

judgments, the Court had laid down the relevant principles governing

the making of statements by public officials which may be seen as a

premature expression of a defendant’s guilt (see, for example,

Daktaras

v. Lithuania

112

;

Butkevičius v. Lithuania

113

; and

Gutsanovi v. Bulgaria

114

). In

the applicant’s case the Court found that parliamentary commissions of

inquiry were also required to respect the guarantee contained in Article 6

§ 2 as regards the wording of their terms of reference, the discharge of

their mandate and their published conclusions. It is interesting to note

that the Court did not at any stage take issue with the decision to allow a

parliamentary investigation to run in parallel with a criminal trial dealing

with a related matter.

The Court had regard in the applicant’s case to the public-interest

considerations which had led to the creation of the commission of

inquiry and the need for it to ensure transparency for its work and

findings. Its role was distinct from that of the criminal court, which had

to determine the applicant’s guilt or innocence. The applicant’s criminal

liability was not a matter for the commission of inquiry. As in many cases

raising issues under Article 6 § 2, much depended on the Court’s view

of the impugned expressions. In the applicant’s case, it found that even

though the final report referred to the applicant by name in connection

with the corrupt conduct of senior officials he had not been directly

targeted by the authors who, moreover, had not adverted in their report

to the criminal proceedings pending against the applicant or offered any

view on his possible criminal liability for aiding and abetting corruption.

112.

Daktaras v. Lithuania,

no. 42095/98, § 41, ECHR 2000-X.

113.

Butkevičius v. Lithuania,

no. 48297/99, §§ 49, 50 and 53, ECHR 2002-II (extracts).

114.

Gutsanovi v. Bulgaria,

no. 34529/10, §§ 191 et seq., ECHR 2013 (extracts).

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Defence rights (Article 6 § 3)

The case of

Blokhin

115

, cited above, concerned the placement of the

applicant, a minor who had not reached the age of criminal responsibility,

in a juvenile detention centre.

The applicant, who was twelve years of age at the material time, was

arrested and taken to a police station on suspicion of having extorted

money from another minor. On the strength of the applicant’s confession

(which he later contested) and the statements of the alleged victim

and the latter’s mother, the authorities found that he had committed

offences punishable under the Criminal Code. However, no criminal

proceedings were initiated since he was below the statutory age of

criminal responsibility. He was brought before a court, which ordered

his placement in a temporary detention centre for minor offenders for

a period of thirty days in order to “correct his behaviour” and to prevent

his committing any further acts of delinquency.

The Grand Chamber found,

inter alia,

a violation of Articles 6 §§ 1

and 3 (on the ground that the applicant had been entitled to, but did not

benefit from, the procedural guarantees of Article 6 of the Convention).

The judgment is noteworthy because it comprehensively addresses,

and in some respects develops, the procedural rights of detained

juveniles (under the age of criminal responsibility). It also lists relevant

international and regional juvenile justice standards on which, in certain

respects, the judgment directly relied.

116

It is interesting to note that the Grand Chamber, like the Chamber,

applied the procedural guarantees of Article 6 to the proceedings

which led to the applicant’s detention. The Grand Chamber adopted

the reasoning of the Chamber and, stressing the need to look beyond

appearances and at the realities of the situation, found that the “more

far-reaching procedural guarantees” of Article 6 should have applied

to those proceedings: even though no criminal proceedings had been

initiated against the applicant, the nature of the offence, together with

the nature and severity of the penalty, were such as to engage the

applicability of the criminal limb of that provision. The Court rejected

the Government’s contention that these procedural complaints should

115.

Blokhin v. Russia

[GC], no. 47152/06, ECHR 2016, see also under

Article 3

and

Article 5

above.

116. These included the 1989

UN Convention on the Rights of the Child

and the the

Beijing

Rules,

as well as the 2008

European Rules for juvenile offenders subject to sanctions or

measures

and the 2010

Guidelines of the Committee of Ministers of the Council of Europe

on child-friendly justice.

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be examined under Article 5 § 4 (see, in this connection,

Bouamar,

cited above

117

The Grand Chamber went on to find, on the merits, that there

had been a violation of Article 6 on account of the absence of legal

assistance during the applicant’s interview with the police and the

denial of an opportunity during the special procedure before the judge

making the detention order to cross-examine the decisive witnesses

against him. Paragraphs 196 and 218 of the judgment elaborate on the

Court’s reasoning in this respect, addressing as they do the notion of

“status crimes”. In particular, the Court explained that a child should not

be deprived of procedural guarantees simply because the process that

might result in his or her detention is deemed to be protective: rather

those guarantees should be triggered by the acts a child is alleged to

have committed and not by the child’s status as a juvenile delinquent.

***

The judgment in

Yaroslav Belousov

118

, cited above, concerned the

confinement of the applicant in a glass cabin during the court hearings

in his case. During the first two months of the hearings, the applicant,

who had been charged with public-order offences, and nine other

accused were confined in a very cramped glass cabin. In the ensuing

three-month period, the hearings were held in a different courtroom

equipped with two glass cabins allowing the applicant and the other

accused more space.

In the Convention proceedings the applicant complained, among

other things, that his confinement as described amounted to degrading

treatment and had impaired his effective participation in the trial,

including contact with his counsel. He relied on Articles 3 and 6 of the

Convention. The judgment is noteworthy in that this is the first time that

the Court has had to address this particular form of security arrangement

in a courtroom for compliance with Article 6.

The Court reviewed the extent to which the above-described security

arrangements infringed Article 6 fairness guarantees. Significantly,

and as regards the proceedings during the first two months of the

trial, it found that a breach of Article 6 flowed almost inevitably from

the conclusion that the applicant’s confinement in the cramped and

overcrowded glass cabin amounted to degrading treatment, it being

difficult to reconcile the degrading treatment of the applicant during

117.

Bouamar v. Belgium,

29 February 1988, Series A no. 129.

118.

Yaroslav Belousov v. Russia,

nos. 2653/13 and 60980/14, 4 October 2016, see also under

Article 3 (Degrading treatment)

above.

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the judicial proceedings with the notion of a fair hearing. Concerning

the second period of confinement, which was found to be Article 3

compliant, the Court’s inquiry was focused on whether the placement

of the applicant in a glass cabin was a necessary and proportionate

restriction on his right to a fair hearing, having regard to the security

risks relied on by way of justification for the application of the measure.

The Court found in favour of the applicant.

Referring in particular to its case-law on the importance of an

accused’s right to communicate with his lawyer without the risk of being

overheard by a third party (see

Svinarenko and Slyadnev

119

, cited above,

and

Sakhnovskiy v. Russia

120

, with further references), it noted that the

glass cabin constituted a physical barrier between him (and the other

accused) and the rest of the courtroom, which to some extent reduced

his direct involvement in the hearing. This arrangement also made it

impossible for the applicant to have confidential exchanges with his

legal counsel, to whom he could only speak through a microphone and

in close proximity to the police guards. It was also of relevance that the

cabin was not equipped to enable the applicant to handle documents

or take notes. Moreover, the Court found that the use of the glass cabin

was not warranted by any specific security risks or by a need to maintain

order in the courtroom, but was deployed as a matter of routine. The

Court noted that the trial court had no discretion to order that the

applicant and the other defendants be placed outside the cabin, did not

seem to appreciate the impact of the arrangements on the applicant’s

defence rights, and did not take any measures to compensate for the

limitations. It concluded that there had been a breach of Article 6 §§ 1

and 3 (b) and (c).

The Court’s judgment is a further illustration of its concern to ensure

that the need to take account of security considerations surrounding a

trial, which it acknowledged to be a legitimate reason for restricting the

rights of the defence, are warranted in the circumstances of a particular

case and, where justified, are applied in a proportionate manner (for a

recent example, but not involving the use of a glass cabin, see

Simon

Price v. the United Kingdom

121

119.

Svinarenko and Slyadnev v. Russia

[GC], nos. 32541/08 and 43441/08, § 127, ECHR 2014

(extracts).

120.

Sakhnovskiy v. Russia

[GC], no. 21272/03, § 97, 2 November 2010.

121.

Simon Price v. the United Kingdom,

no. 15602/07, §§ 87-94, 15 September 2016.

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***

The

Constantinides v. Greece

122

judgment concerned the admission and

use of the incriminating conclusions of an absent expert.

The applicant was convicted of fraud on the strength of, among

other factors, the evidence of a handwriting expert commissioned by

the prosecutor at the charge stage. The expert, although summoned,

failed to appear and testify at the trial. No explanation was given for his

absence. The expert’s report had been included in the file and was read

out during the trial. The applicant’s own expert attended the trial and

provided written and oral evidence contradicting the findings of the

prosecution’s expert.

In the Convention proceedings the applicant submitted that there

had been a breach of Article 6 §§ 1 and 3 of the Convention, since he

had been convicted solely or to a decisive extent on the evidence of an

absent witness.

The Court found that the applicant’s right to a fair trial had not

been breached as alleged. The judgment is noteworthy in that the

Court applied the principles concerning the use of evidence of

absent witnesses as set out in the Grand Chamber’s judgment in

Schatschaschwili v. Germany

123

to the circumstances of the applicant’s

case. These principles were recently summarised in

Seton v. the United

Kingdom

124

. For the Court, they apply,

mutatis mutandis,

to the admission

and use of evidence given by an expert whom the accused has not had

the opportunity to cross-examine. On the facts of the applicant’s case,

the Court observed as follows.

(i) The domestic courts had not made all reasonable efforts to secure

the attendance of the expert;

(ii) Although the expert report was considered by the domestic

courts to be of significant evidential value, it was not the sole or decisive

basis for the applicant’s conviction; it served in effect to corroborate

witness and documentary evidence adduced at the trial as proof of the

applicant’s guilt;

(iii) There were sufficient safeguards in place to compensate for the

applicant’s inability to question the expert directly, in particular the

active participation at the trial of the applicant’s own expert witness.

It is of interest that the Court found that it was relevant for the

purposes of its assessment that the report of the absent expert did not

122.

Constantinides v. Greece,

no. 76438/12, 6 October 2016.

123.

Schatschaschwili v. Germany

[GC], no. 9154/10, §§ 111-31, ECHR 2015.

124.

Seton v. the United Kingdom,

no. 55287/10, § 59, 31 March 2016.

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concern matters which the latter had seen or heard about in relation to

the charges against the applicant. The report was technical in nature and

its author was an independent expert who had been commissioned by

the judicial authorities at the investigation stage to help clarify certain

issues in the file. The applicant’s own expert had had every opportunity

at the trial to cast doubt on the findings.

Defence through legal assistance (Article 6 § 3 (c))

The

Ibrahim and Others v. the United Kingdom

125

concerned delays in

access to a lawyer during police questioning.

The applicants were suspected of attempted suicide bombings in

London on 21 July 2005, two weeks after fifty-two people had been

killed also in suicide bombings in London.

The first three applicants were arrested and temporarily refused legal

assistance during police “safety interviews”. Their statements, denying

any involvement in the events, were made without legal assistance and

were admitted at their trials (at trial, they acknowledged involvement

but claimed that the bombs had been a hoax since they were never

intended to explode). The fourth applicant was interviewed as a witness.

Unlike the other applicants, he started to incriminate himself. Rather

than arrest him at that point as a suspect and advise him of his right

to silence and to legal assistance, the police allowed him to continue

to answer their questions as a witness and make a written statement.

He adopted the statement after receiving legal advice but argued at

trial that it should not be admitted since it had been made without

legal advice.

The applicants complained under Article 6 §§ 1 and 3 (c) of their lack

of access to lawyers during police questioning and the admission at

trial of their statements. The Grand Chamber found that there had been

no violation as regards the first three applicants and a violation of the

Convention as regards the fourth applicant.

The Grand Chamber judgment is noteworthy in that it clarifies the

two stages of the

Salduz v. Turkey

126

test and the relationship between

them. It described those two stages as follows: the Court must assess,

in the first place, whether there were “compelling reasons” to restrict the

right of access to a lawyer and, secondly, the impact of that restriction

on the overall fairness of the proceedings.

(i) As to the meaning and import of “compelling reasons”, the

Grand Chamber emphasised the “stringent” nature of this criterion

125.

Ibrahim and Others v. the United Kingdom

[GC], nos. 50541/08 and 3 others, ECHR 2016.

126.

Salduz v. Turkey

[GC], no. 36391/02, ECHR 2008.

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so that restrictions on access to legal advice “[were] permitted only in

exceptional circumstances, must be of a temporary nature and must be

based on an individual assessment of the particular circumstances of

the case”. It was relevant that the restriction had a basis in law which

sufficiently circumscribed the scope and content of any restriction

so as to guide operational decision-making. The compelling nature of

the reasons had to be assessed on a case-by-case basis on the basis of

these principles.

(ii) As to the relationship between “compelling reasons” and fairness,

the Grand Chamber confirmed, relying on

Salduz,

cited above, and

Dvorski v. Croatia

127

, that there was no bright-line rule to the effect

that the absence of compelling reasons was sufficient of itself to find

a violation. Where there were compelling reasons for the restriction,

a holistic assessment of the entirety of the proceedings had to be

conducted to determine fairness. Where there were no compelling

reasons, the Court had to apply “a very strict scrutiny” to its fairness

assessment: a lack of compelling reasons weighed heavily in the

balance when assessing overall fairness and might tip the balance in

favour of a violation (the Grand Chamber referenced a similar approach

Schatschaschwili

128

, cited above, as regards the absence of good

reason for the non-attendance of a witness at a trial). In the absence of

compelling reasons, a presumption of unfairness arose and the onus

was on the Government to demonstrate convincingly why, exceptionally

and in the specific circumstances of the case, the overall fairness of the

trial had not been irretrievably prejudiced by the restriction.

(iii) The Grand Chamber went on to provide a non-exhaustive list

of factors, drawn from the Court’s case-law, to be taken into account as

appropriate when assessing the impact of the restriction on access to a

lawyer on the fairness of the proceedings including: the vulnerability of

the applicant; the legal framework governing the pre-trial proceedings

and the admissibility of evidence at trial, and whether it was complied

with; the safeguards available including whether the applicant could

challenge the evidence and oppose its use; the quality of the impugned

evidence and the degree and nature of any compulsion; the probative

value of that evidence and of the other evidence; and the weight

of the public interest in the investigation and punishment of the

particular offence.

127.

Dvorski v. Croatia

[GC], no. 25703/11, ECHR 2015.

128.

Schatschaschwili v. Germany

[GC], no. 9154/10, § 113, ECHR 2015.

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Applying these principles, the Grand Chamber came to different

conclusions as regards the first three applicants, on the one hand, and

the fourth applicant, on the other.

As to the first three applicants, the Grand Chamber accepted that

the Government had convincingly demonstrated a compelling reason

for the restriction – the existence of an “urgent need to avert serious

adverse consequences for the life and physical integrity of the public” –

and found that the proceedings were, as a whole, fair. In contrast, the

Court did not find the existence of compelling reasons demonstrated

in the fourth applicant’s case given,

inter alia,

the complete absence

of any legal framework enabling the police to act as they did and the

deliberate decision by the police not to arrest and caution him. The

onus thereby shifted to the Government. Taking into account the high

threshold which applied where the presumption of unfairness arose and

having regard to the cumulative effect of the procedural shortcomings

in the fourth applicant’s case, the Government were found to have failed

to demonstrate why the overall fairness of the trial was not irretrievably

prejudiced by the decision not to caution the fourth applicant and to

restrict his access to legal advice.

Other rights in criminal proceedings

No punishment without law (Article 7)

The

Bergmann v. Germany

129

judgment concerned the retrospective

prolongation of preventive detention ordered by a criminal court and

the notion of a “penalty”.

The applicant was convicted in 1986 of serious violent sexual offences

and sentenced to a term of imprisonment. The sentencing court also

ordered that the applicant be placed in preventive detention on account

of his dangerousness. On the expiry of his prison sentence the applicant

was placed in preventive detention. According to the law applicable at

the time of the commission of the offences, preventive detention could

not exceed ten years. However, at the end of the ten-year period, the

measure was prolonged in the applicant’s case. The courts responsible

for the execution of sentences relied in this connection on legislation

enacted in 1998, and thus after the applicant’s conviction, which

authorised the imposition of preventive detention without a maximum

duration and, where such measure was already in place, its prolongation

with retrospective effect. In addition, the same courts, on the basis of

new legislation which came into force in June 2013, concluded that the

129.

Bergmann v. Germany,

no. 23279/14, 7 January 2016.

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applicant was suffering from a mental disorder (sexual sadism) which

necessitated medical treatment and therapy, and thus the prolongation

of his preventive detention. The courts were satisfied that there was a

high risk that, if released, the applicant would reoffend as a result of

that disorder.

In the Convention proceedings, the applicant complained, among

other things, that the retrospective extension of his preventive

detention beyond the former ten-year maximum duration had resulted

in the imposition of a heavier penalty, in breach of the second sentence

of Article 7 § 1 of the Convention. However, the Court did not agree.

The judgment is noteworthy in that the Court ruled, contrary to

the Government’s contention, that preventive detention imposed

pursuant to the 1998 legislation, or its retroactive prolongation as in the

applicant’s case, constituted in principle a “penalty” for the purposes of

Article 7 § 1. It noted that the measure entailed a deprivation of liberty

of indefinite duration and was imposed by the criminal courts following

conviction for a criminal offence. The Court thus confirmed that the

domestic classification of a measure was not decisive and that the

notion of “penalty” must be given an autonomous meaning.

The Court had no difficulty in accepting that the prolongation of the

applicant’s preventive detention constituted a heavier measure than

the one applicable at the time the applicant committed the offences of

which he was convicted.

That said, it is of further note that the Court concluded that the

prolongation of the applicant’s preventive detention could not in the

circumstances of his case be classified as a penalty. It had regard, among

other things, to the following considerations:

(i) The retrospective prolongation of the measure was based on

the conclusion that the applicant was suffering from a mental disorder,

a factor which had not been of relevance when the measure was first

ordered by the sentencing court back in 1986.

(ii) The applicant was prescribed individualised therapeutic care in a

less coercive environment than an ordinary prison in order to reduce his

dangerousness resulting from his mental disorder.

***

The judgment in

Dallas v. the United Kingdom

130

concerned the allegedly

unforeseeable application of the law on contempt for breach of a judge’s

direction to jurors prohibiting them from researching on the Internet

the case being tried before them.

130.

Dallas v. the United Kingdom,

no. 38395/12, 11 February 2016.

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The applicant was selected to serve on a jury in a criminal trial. The

jury retired to consider their verdict at the end of the trial. After the court

had risen, one of the jurors notified the court that the applicant, contrary

to the judge’s direction to the jury at the time of its empanelment, had

researched on the Internet the defendant’s previous convictions and had

informed the other jurors of her findings. The trial judge subsequently

discharged the jury and the trial was aborted. The applicant was later

convicted of contempt of court. The domestic court found that the

applicant had deliberately disobeyed a clear direction by the trial judge

to the members of the jury and had not merely risked causing prejudice

to the administration of justice through her Internet research but had

caused such prejudice by disclosing her findings to her fellow jurors.

In the Convention proceedings, the applicant alleged that she had

been found guilty of a criminal offence on account of an act which

did not constitute a criminal offence at the time it was committed, in

breach of Article 7 of the Convention. She contested in particular the

fact that the court had not inquired as to the existence of a “real

risk”

of prejudice to the administration of justice and whether she had had

intention

to create such risk. For the applicant, these were essential

aspects of the offence of contempt as defined in domestic law. However,

the domestic court had confined itself to ascertaining whether she had

breached a court order which, moreover, had not carried a warning that

non-compliance would entail the imposition of a criminal sanction.

The Court disagreed with the applicant. In so doing, it referred to the

accessibility and foreseeability requirements which the notion of “law”

must satisfy and noted also that the process of judicial interpretation

may lead to the gradual clarification of the rules of criminal liability on a

case-by-case basis (Del

Río Prada v. Spain

131

For the Court, in having regard to the

actual

prejudice caused by

the applicant’s conduct, the domestic court could not be said to have

applied a lower threshold than the “real risk” test contained in the

common law. As to the matter of

intent,

it found that the domestic court

had not reached an unforeseeable conclusion in stating that intent

could be demonstrated by the foreseeability of the consequences of

one’s actions, in the instant case the breach by the applicant of the trial

judge’s direction to the jury. The domestic court had not introduced a

new test but clarified as a matter of judicial interpretation the relevant

domestic law on the manner in which intent could be proved. Finally,

the fact that no specific warning was set out in the trial judge’s direction

131.

Del Río Prada v. Spain

[GC], no. 42750/09, §§ 77-80 and 91-93, ECHR 2013.

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had not undermined the clarity of that direction. The consequences of

contempt of court on account of Internet research had also been made

clear in notices in the jury room and it had in any event been open to the

applicant to clarify the matter of possible sanctions with the trial judge.

The judgment is of interest for several reasons.

Firstly, the Court, like the domestic court, accepted that disobedience

of a judge’s direction to a jury may give rise to criminal sanctions. Whether

or not an issue arises under Article 7 will depend on the extent to which

the relevant domestic law fulfils the necessary qualitative requirements.

Secondly, the case highlights the importance which the Court

attaches to the nature of a judge’s directions to a jury as a means of

framing its decision-making and securing the fairness of proceedings;

it complements previous case-law on this point (see, for example,

Beggs

v. the United Kingdom

132

, and

Abdulla Ali v. the United Kingdom

133

, in

the context of a common-law system, and, in the context of a civil-law

system,

Taxquet

134

, cited above).

Thirdly, the case is another illustration of the fact that Article 7 of

the Convention will not be breached where judicial development of the

law in a particular case is consistent with the essence of the offence and

could be reasonably foreseen (see

Del Río Prada,

cited above, §§ 92-93).

Finally, the case illustrates once again the relevance of the Internet

when it comes to the protection of Convention rights, in the instant

case the need to secure the Article 6 guarantee to a fair trial before an

impartial tribunal against the risks which the Internet creates for the

introduction of extraneous material into the jury room.

***

The issue before the Court in

Ruban v. Ukraine

135

was whether a gap in

the legislation could give rise to a more lenient sentence.

The applicant was convicted in 2010 of offences committed in 1996,

including aggravated murder. At the time of the commission of the

offences, the 1960 Criminal Code provided for the death penalty for an

offence of aggravated murder. On 29 December 1999 the Constitutional

Court found the death penalty to be unconstitutional with immediate

effect. Three months later, on 29 March 2000, Parliament amended the

Criminal Code so as to abolish the death penalty by replacing it with

life imprisonment for the offence of aggravated murder. The applicant

132.

133.

134.

135.

Beggs v. the United Kingdom

(dec.), no. 15499/10, §§ 128, 131 and 158, 16 October 2012.

Abdulla Ali v. the United Kingdom,

no. 30971/12, § 96, 30 June 2015.

Taxquet v. Belgium

[GC], no. 926/05, § 92, ECHR 2010.

Ruban v. Ukraine,

no. 8927/11, 12 July 2016.

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contended in the Convention proceedings that the

lex mitior

principle

required that he benefit from the more lenient sentence – fifteen years’

imprisonment – applicable to an offence of aggravated murder during

the three-month period between the ruling of the Constitutional Court

and the amendment of the Criminal Code.

The Court found that there had been no breach of Article 7. It

reiterated that

“Article 7 § 1 guarantees not only the principle of non-

retrospectiveness of more stringent criminal laws but also,

implicitly, the principle of retrospectiveness of the more lenient

criminal law; in other words, where there are differences between

the criminal law in force at the time of the commission of an offence

and subsequent criminal laws enacted before a final judgment

is rendered, the courts must apply the law whose provisions are

most favourable to the defendant (see

Scoppola v. Italy (no. 2)

[GC],

no. 10249/03, § 109, 17 September 2009)”.

The judgment is of interest in view of the context in which the

applicant claimed entitlement to a more favourable sentence, namely

a gap in the legislation. In the Court’s view the creation of the above-

mentioned three-month gap had not been intentional and there was

nothing in the materials before it which indicated “any intention of

the legislator in particular, and of the State in general, to mitigate the

law to the extent claimed by the applicant”. It is noteworthy that the

Court stressed in this connection that “the intention of the legislator

to humanise the criminal law and to give retrospective effect to more

lenient law is an important factor” (see also

Gouarré Patte v. Andorra

136

It concluded that at the time when the applicant committed his crime in

1996, it was punishable by the death penalty. Parliament then replaced

that penalty with a life sentence, which it considered proportionate, and

the courts had in fact applied the more lenient form of punishment.

Right not to be tried or punished twice (Article 4 of Protocol No. 7)

The judgment in

A and B v. Norway

137

concerned parallel or dual adminis-

trative and criminal sanctions for the same conduct.

Tax surcharges were imposed on the applicants following adminis-

trative proceedings because they had omitted to declare certain

income in tax returns. In parallel criminal proceedings they were also

subsequently convicted and sentenced for tax fraud for the same

136.

Gouarré Patte v. Andorra,

no. 33427/10, § 35, 12 January 2016.

137.

A and B v. Norway

[GC], nos. 24130/11 and 29758/11, ECHR 2016.

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omissions. They complained under Article 4 of Protocol No. 7 that they

had been prosecuted and punished twice in respect of the same offence.

The judgment is important because it clarifies the Court’s case-

law concerning the compliance with Article 4 of Protocol No. 7 (ne

bis

in idem)

of parallel or dual administrative and criminal sanctions for

the same conduct, and provides a framework for the examination of

such compliance.

(i) The Grand Chamber firstly reviewed the continuing relevance of

Sergey Zolotukhin v. Russia.

138

– Whether the administrative proceedings were “criminal” for the

purposes of Article 4 of Protocol No. 7 was to be assessed, as in the

Sergey Zolotukhin

judgment, on the basis of the three

Engel

139

criteria

developed for the purposes of Article 6: the

ne bis in idem

principle was

mainly concerned with due process which was the object of Article 6.

That said, once the

ne bis in idem

principle was to apply, there was an

evident need for a “calibrated approach” to the manner in which that

principle was to be applied to proceedings combining administrative

and criminal penalties.

– The

Sergey Zolotukhin

judgment clarified that, whether the offences

dealt with in separate proceedings were the same (idem) required a

facts-based assessment (a prosecution or trial of a second “offence” was

prohibited in so far as the latter arose from facts which were identical or

substantially the same), rather than a formal assessment comparing the

“essential elements” of the offences.

– That judgment also confirmed that Article 4 of Protocol No. 7

provided that, for the same offence, no one should be (i) liable to be

tried; (ii) tried; or (iii) punished.

Otherwise, the

Sergey Zolotukhin

judgment was found to offer

little guidance to situations such as in the present case where the

proceedings had not in reality been duplicated (bis) but combined

rather in an integrated manner so as to form a coherent whole (what the

Grand Chamber called “dual” proceedings).

(ii) The Grand Chamber therefore reviewed the Court’s case-law

(which pre- and post-dated the

Sergey Zolotukhin

judgment) on the

application of the

ne bis in idem

principle to such dual proceedings.

That case-law was found to confirm that a State should be able to

choose complementary legal responses to socially offensive conduct

(such as in a traffic or tax context). This legal response would not amount

to a duplication of proceedings proscribed by Article 4 of Protocol No. 7

138.

Sergey Zolotukhin v. Russia

[GC], no. 14939/03, ECHR 2009.

139.

Engel and Others v. the Netherlands,

8 June 1976, Series A no. 22.

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if it was convincingly demonstrated that the dual proceedings were

“sufficiently closely connected in substance and in time” in that they

were “combined in an integrated manner so as to form a coherent whole”

enabling the different aspects of the wrongdoing to be addressed in a

foreseeable and proportionate manner so that the individual concerned

was not subjected to injustice (a test largely drawn from,

inter alia,

R.T. v.

Switzerland

140

Nilsson v. Sweden

141

, as well as

Nykänen v. Finland

142

As to what the Grand Chamber meant by “sufficiently connected

in substance”, certain conditions would be determinative including

whether: the different proceedings pursued complementary purposes

addressing different aspects of the impugned conduct; the conduct of

dual proceedings was foreseeable; the proceedings avoided duplication

in the collection and assessment of evidence; and, importantly, whether

the second sanction imposed took account of the first. It was also

relevant that the administrative proceedings concerned a matter (such

as traffic or tax offences) which differed from the hard-core of criminal

law since the “criminal-head guarantees [of Article 6] will not necessarily

apply with their full stringency”

143

As to “sufficiently connected in time”, the Grand Chamber clarified

that that connection had to be sufficiently close to protect the individual

from being subjected to uncertainty and delay and from proceedings

becoming protracted over time.

(iii) Applying these principles to the facts of the present applications,

the Grand Chamber was satisfied that, whilst different sanctions had

been imposed on the applicants by two different authorities in different

proceedings, there was nevertheless a sufficiently close connection

between them, both in substance and in time, “to consider them as

forming part of an integral scheme of sanctions under Norwegian

law” for failure to provide information for their tax returns. The dual

proceedings did not constitute, therefore, a proscribed duplication of

proceedings so there had been no violation of Article 4 of Protocol No. 7

to the Convention.

(iv) It remains to be seen to what extent these principles will apply

to consecutive proceedings for the same conduct.

140.

141.

142.

143.

R.T. v. Switzerland

(dec.), no. 31982/96, 30 May 2000.

Nilsson v. Sweden

(dec.), no. 73661/01, 13 December 2005.

Nykänen v. Finland,

no. 11828/11, 20 May 2014.

Jussila v. Finland

[GC], no. 73053/01, § 43, ECHR 2006-XIV.

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Prohibition of collective expulsion of

aliens (Article 4 of Protocol No. 4)

The backdrop to the judgment in

Khlaifia and Others,

cited above

144

, was

the 2011 migration crisis and the consequent challenges confronting

the receiving State.

The judgment explores in some detail the Convention rights of

immigrants against the background of the migration and humanitarian

crisis that unfolded in 2011, when events related to the “Arab Spring”

led to a mass influx of immigrants into certain States (here, the island of

Lampedusa) leading to significant pressures on the receiving State.

The case concerned the arrival of the applicants, three Tunisian

economic migrants, on the island of Lampedusa, their initial placement

in a reception centre and their subsequent confinement on board two

ships moored in Palermo harbour, followed by their removal to Tunisia

in accordance with a simplified procedure under an agreement between

Italy and Tunisia of April 2011. The applicants complained,

inter alia,

under Article 4 of Protocol No. 4.

The Grand Chamber found no violation of that provision.

The Court’s examination of the complaint under Article 4 of Protocol

No. 4 is informed by a useful review of its case-law (notably,

Čonka v.

Belgium

145

;

Hirsi Jamaa and Others,

cited above

146

Georgia v. Russia (I)

147

;

and

Sharifi and Others v. Italy and Greece

148

) which requires a sufficiently

individualised examination of the particular case of each individual alien.

The Grand Chamber specifically addressed the impact of the

migration crisis. It reiterated that problems with the management of

migratory flows or with the reception of asylum-seekers could not justify

recourse to practices which were not compatible with the Convention

or the Protocols thereto (citing

Hirsi Jamaa and Others,

§ 179). The Grand

Chamber went on, nevertheless, to confirm that it had “taken note of the

‘new challenges’ facing European States in terms of immigration control

as a result of the economic crisis, recent social and political changes which

have had a particular impact on certain regions of Africa and the Middle

East, and the fact that migratory flows are increasingly arriving by sea”.

The basis upon which the Grand Chamber concluded as to no

violation of Article 4 of Protocol No. 4 is also novel, focusing as it did

144.

Khlaifia and Others v. Italy

[GC], no. 16483/12, ECHR 2016, see also under

Article 3

(Inhuman or degrading treatment)

above.

145.

Čonka v. Belgium,

no. 51564/99, ECHR 2002-I.

146.

Hirsi Jamaa and Others v. Italy

[GC], no. 27765/09, ECHR 2012.

147.

Georgia v. Russia (I)

[GC], no. 13255/07, ECHR 2014 (extracts).

148.

Sharifi and Others v. Italy and Greece,

no. 16643/09, 21 October 2014.

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on the individual review which

could have taken place.

In particular,

the Grand Chamber pointed out that Article 4 of Protocol No. 4 did not

guarantee the right to an individual interview in all circumstances: “the

requirements of this provision may be satisfied where each alien has

a genuine and effective possibility of submitting arguments against

his or her expulsion, and where those arguments are examined in an

appropriate manner by the authorities of the respondent State.” Since

the applicants had undergone identification on two occasions; since

their nationality had been established; and, most importantly, since they

had at all times had a genuine and effective possibility of submitting

arguments against their expulsion had they wished to do so, the

Grand Chamber considered that their expulsion (which was virtually

simultaneous) could not be described as a collective one.

As regards Article 13 of the Convention in conjunction with Article 4

of Protocol No. 4, it is important to note that the Grand Chamber clarified

when Article 13 requires a suspensive remedy to challenge an expulsion

as a collective one.

In particular, and clarifying the case of

De Souza Ribeiro v. France

149

where this question was addressed in 2012, the Grand Chamber

confirmed that, when an applicant alleges that an expulsion procedure

was “collective” in nature but does not claim at the same time that it

had exposed him or her to a risk of irreversible harm in the form of a

violation of Articles 2 or 3 of the Convention, then the Convention

does not impose an absolute obligation on a State to guarantee an

automatically suspensive remedy, but merely requires that the person

concerned should have an effective possibility of challenging the

expulsion decision by having a sufficiently thorough examination of his

or her complaints carried out by an independent and impartial domestic

forum. The lack of suspensive effect, without therefore a claim of a risk of

treatment contrary to Articles 2 or 3, was found to not in itself constitute

a violation of Article 13 of the Convention.

Right to an effective remedy (Article 13)

150

Mozer

151

, cited above, the applicant, who had been detained

since 2008, was convicted in 2010 of defrauding two companies and

sentenced to seven years’ imprisonment, five of which were suspended.

149.

De Souza Ribeiro v. France

[GC], no. 22689/07, §§ 82-83, ECHR 2012.

150. See also below

Paunović and Milivojević v. Serbia,

no. 41683/06, 24 May 2016, and

Khlaifia and Others v. Italy

[GC], no. 16483/12, ECHR 2016, under Article 4 of Protocol No. 4

(Prohibition of collective expulsion of aliens) above.

151.

Mozer v. the Republic of Moldova and Russia

[GC], no. 11138/10, 23 February 2016.

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He was released on the basis of an undertaking not to leave the city of

Tiraspol. On an unspecified date after July 2010, he went to Chișinău

for medical treatment and, in 2011, to Switzerland, where he applied

for asylum. He complained under Article 5 that his detention by the

“MRT courts” had been unlawful. He also complained of his treatment

in detention under,

inter alia,

Articles 3, 8 and 9 of the Convention, read

alone and in conjunction with Article 13.

The Grand Chamber found that Russia had violated Articles 3, 5, 8, 9

and 13

152

of the Convention and that there had been no violation of

those Articles by the Republic of Moldova.

The Grand Chamber found that Russia had violated Article 3 (the

applicant’s treatment in detention), Article 8 (restrictions on prison visits

by the applicants’ relatives) and Article 9 of the Convention (refusal to

allow prison visits from a pastor). It went on to find a rather pragmatic

solution to the associated Article 13 complaint. The applicant was found

not to have had an effective remedy in the “MRT”. However, the Grand

Chamber found that the Republic of Moldova had fulfilled its positive

obligations by providing a parallel system of remedies which, although

not effective in Transdniestria itself, served to bring individual issues

before the Moldovan authorities which could then be the subject

of relevant diplomatic and legal steps by them. However, again by

virtue of its effective control over the “MRT”, the Russian Government’s

responsibility was engaged as regards the lack of effective domestic

remedies available to the applicant in the “MRT”.

***

The judgment in

Kiril Zlatkov Nikolov

153

, cited above, concerned the

applicant’s inability to benefit from a Constitutional Court ruling –

which would have afforded him a remedy for alleged discrimination

in the enjoyment of his fair-trial rights – as it did not apply with

retrospective effect.

The applicant, a Bulgarian national, was charged with offences

relating to international prostitution. Given the nature of the offences,

his interview before the investigating judge was not recorded on video.

According to the relevant provisions of the Code of Criminal Procedure

at the material time, interviews automatically had to be recorded

regardless of the offence unless it fell within the following categories:

organised crime (the applicant’s case); terrorism; and threats to

fundamental national interests. The applicant succeeded in having this

152. See also

Article 1

and

Article 5

above.

153.

Kiril Zlatkov Nikolov v. France,

nos. 70474/11 and 68038/12, 10 November 2016.

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provision declared unconstitutional with reference to the principle of

equality. However, the ruling of the Constitutional Court had no impact

on his case given that, as found by the Court of Cassation, the ruling

only benefited persons who were in the applicant’s situation after the

date of the publication of the ruling. In the Convention proceedings,

the applicant complained among many other things that he had been

discriminated against in the enjoyment of his right to a fair trial, contrary

to Article 14 of the Convention read in conjunction with Article 6

and, under Article 13, that he had no effective remedy to contest the

discriminatory application of the law to his own situation.

The Court’s decision on this latter complaint is noteworthy in that it

had to address the applicant’s grievance that he was unable to benefit

from the favourable ruling of the Constitutional Court, and was thus

denied an effective remedy in breach of Article 13. Interestingly, the

Court observed that the applicant’s complaint might appear to not

be manifestly ill-founded in view of the Constitutional Court’s ruling.

It noted, however, that a complaint which is declared inadmissible in

application of the criteria laid down in Article 35 § 3 (b) could not be

considered “arguable” for the purposes of Article 13 (see

Kudlička v. the

Czech Republic

154

). The complaint was therefore manifestly ill-founded.

OTHER RIGHTS AND FREEDOMS

Right to respect for one’s private and family

life, home and correspondence (Article 8)

Private life

155

The judgment in

Dubská and Krejzová v. the Czech Republic

156

concerned

domestic law which allowed the applicants to have home births but

rendered it unlawful for health professionals to assist.

The applicants wished to give birth at home assisted by midwives.

Giving birth at home was not unlawful but midwives could have been

sanctioned for assisting. The first applicant considered that the hospital

had not respected her wishes when she gave birth to her first child so she

gave birth to her second child at home; given the risk of sanctions, she

could not find any medical assistance. The Constitutional Court rejected

her complaint on procedural grounds (the majority expressed doubts as

to the compliance of domestic law with Article 8 of the Convention and

encouraged debate about the need for new legislation on this topic).

154.

Kudlička v. the Czech Republic

(dec.), no. 21588/12, 3 March 2015.

155. See also under

Article 14

below,

Di Trizio v. Switzerland,

no. 7186/09, 2 February 2016.

156.

Dubská and Krejzová v. the Czech Republic

[GC], nos. 28859/11 and 28473/12, ECHR 2016.

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The second applicant gave birth to her first two children at home with

the assistance of a midwife. She had her third child in hospital: given the

then existing risk of sanctions, she could not find a medical professional

willing to assist a home birth. She considered that that hospital did not

respect certain of her wishes.

Both applicants complained under Article 8 that Czech law did not

allow health professionals to assist home births. The Grand Chamber

held that there had been no violation of that provision.

The case is interesting because it addresses the proportionality of

domestic law which allows home births but which prevents (through

sanctions) health professionals from assisting. It is to be distinguished

from

Ternovszky v. Hungary

157

where health professionals were dis-

suaded from assisting home births due to ambiguous legislation

and where the violation was therefore limited to a finding that the

impugned interference was not “in accordance with the law”. Two points

are worth noting.

(i) The Grand Chamber acknowledged that “giving birth is a unique

and delicate moment in a woman’s life”. It confirmed, in line with

Ternovszky,

that giving birth (encompassing as it does issues of physical

and moral integrity, medical care, reproductive health and protection

of health-related information) and the choice of birth place, are

fundamentally linked to a woman’s private life and fall within the scope

of Article 8 of the Convention.

(ii) The Grand Chamber found that the interference with the

applicants’ right to respect for their private lives was not disproportionate

to the legitimate aim of protecting the health and safety of mother and

child during and after delivery.

A key element in this balancing exercise was the finding that the

margin of appreciation accorded to the State was wide. The case

concerned an important public interest in the area of public health

(the laying down of rules for the functioning of a health-care system

incorporating both public and private institutions) and, further, a

complex subject of health-care policy requiring an assessment of

scientific and expert data concerning the respective risks of home and

hospital births. Social and economic policy was also relevant as a home-

birth framework would have budgetary implications. Moreover, there

was no European consensus capable of narrowing the State’s margin

of appreciation.

157.

Ternovszky v. Hungary,

no. 67545/09, 14 December 2010.

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A further element in this assessment was the Court’s acceptance that

the risks for mother and baby, even with a health professional attending,

were higher in a home-birth context.

Finally, while the applicants’ concerns about the conditions in which

they would give birth in hospital could not be disregarded, the Grand

Chamber referred to certain domestic initiatives which had been taken

to seek to improve matters and invited, as the Chamber had done, the

authorities to “make further progress by keeping the relevant legal

provisions under constant review so as to ensure that they reflect

medical and scientific developments whilst fully respecting women’s

rights in the field of reproductive health, notably by ensuring adequate

conditions for both patients and medical staff in maternity hospitals

across the country”.

***

The issue in

Kahn v. Germany

158

was whether an award of damages

was an inevitable consequence of an infringement of an applicant’s

personality rights.

The applicant minors were the children of a famous national sports

personality. They successfully obtained a court order against a publisher

requiring it to refrain from publishing photographs of them on pain of

payment of a fine. The publisher repeatedly breached the injunction

and on three occasions was made to pay a fine, although in a lesser

amount than requested by the applicants. The fines were paid to the

State. The applicants meanwhile sought compensation for breach of

their personality rights. Their civil action was dismissed. Ultimately the

Constitutional Court accepted the view of the civil courts that, given the

nature of the breach of the applicants’ personality rights, their recourse

to the fines procedure and the imposition of fines on the publisher was

in the circumstances a sufficient and preventive form of just satisfaction.

In the Convention proceedings, the applicants contended that

the circumstances of the case disclosed a failure on the part of the

respondent State to respect their right to respect for their private life,

in breach of Article 8. They criticised in particular the domestic courts’

rejection of their compensation claim. The Court ruled against them.

The judgment is noteworthy in that the Court had to decide whether

an award of damages should inevitably follow from a breach of Article 8

in the circumstances alleged by the applicants, namely the unauthorised

publication of photographs of minors notwithstanding the publisher’s

repeated disobedience of court orders not to publish. On that point, the

158.

Kahn v. Germany,

no. 16313/10, 17 March 2016.

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Court stressed the importance of the margin of appreciation available

to States when determining their response to such circumstances. On

the facts of the applicants’ case, it observed, among other things, that

the domestic courts had on each occasion considerably increased the

amount of the fine to be paid by the publisher and that the applicants

had not availed themselves of the possibility to appeal against the

level of the fine in order to have it increased. It also had regard to the

domestic courts’ findings that the infringement of the applicants’ right

was not so serious as to warrant the payment of damages to them,

stressing that domestic law did not exclude the payment of damages

in all circumstances. In this connection, it observed that the applicants’

faces had been obscured in the photographs, or were not visible in

them, and the purpose of publishing them was to draw attention to

their parents’ troubled relationship. Finally, the fines procedure offered

the advantages of speed and simplicity, being triggered by the mere

fact of the publication of the photos.

The Court’s conclusion is of interest. It noted that Article 8 of the

Convention could not be construed as requiring in all circumstances the

payment of monetary compensation to a victim of a breach of personality

rights. It was open to States to envisage other redress mechanisms

to secure the protection of such rights, such as a prohibition-on-

publishing order backed up by a fines procedure. The fact that the fines

were paid to the State and not to the victim could not be seen to be a

disproportionate limitation on the efficacy of such mechanism.

***

The

Vasileva v. Bulgaria

159

judgment concerned a claim for damages

by a patient against a surgeon and hospital following an operation.

Various expert medical reports were produced in the proceedings.

After examining the reports (with the exception of a report that had

been prepared by a surgeon employed by the defendant hospital), the

domestic courts found no evidence of negligence by the surgeon.

In the Convention proceedings, the applicant complained,

inter

alia,

of a lack of impartiality on the part of the medical experts in

the malpractice proceedings and, in particular, of the experts’ lack

of objectivity regarding surgical procedures carried out by a fellow

practitioner. The complaint was examined under Article 8.

The Court found, in the first place, that the Convention does not

require a special mechanism to be put in place to facilitate the bringing

of medical malpractice claims or a reversal of the burden of proof when

159.

Vasileva v. Bulgaria,

no. 23796/10, 17 March 2016.

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the burden is borne by the claimants. In that connection, the Court

observed that unjustifiably exposing medical practitioners to liability

was detrimental to both practitioners and patients.

Secondly, recourse to medical experts in cases of this type was

consistent with the Convention, which does not require medical evi-

dence to be obtained from specialised institutions.

The interest of the case lies in the Court’s examination of the

safeguards in place under the domestic law to ensure the reliability of

evidence produced by medical experts.

The Court considered in detail both the domestic rules governing

the experts’ objectivity and the domestic courts’ role and powers with

respect to medical experts and their reports.

***

The

Sousa Goucha v. Portugal

160

judgment concerned a well-known

celebrity who alleged that he had been defamed during a television

comedy show shortly after making a public announcement concerning

his sexual orientation.

The late-night show was intended to be humorous and included a

quiz in which guests were asked to choose the best female television

host from a list of names including the applicant’s. The applicant’s name

was deemed to be the right answer. The applicant lodged a criminal

complaint against the television company for defamation and insult,

arguing that it had damaged his reputation by creating confusion

between his gender and sexual orientation.

The domestic courts found that a reasonable person would not have

perceived the joke as defamatory because, even if it was in bad taste, it

was not intended to criticise the sexual orientation of the applicant, a

public figure. The joke referred to certain visible characteristics of the

applicant which could be attributed to the female gender, and had

been made in the context of a comedy show known for its playful and

irreverent style. The criminal proceedings were therefore discontinued.

The Court examined the application under Article 8 of the

Convention, the main issue being whether, in the context of its positive

obligations, the State had achieved a fair balance between the right

to protection of reputation and the right to freedom of expression.

Endorsing the approach adopted by the domestic authorities’ in the

instant case, the Court noted that in

Nikowitz and Verlagsgruppe News

160.

Sousa Goucha v. Portugal,

no. 70434/12, 22 March 2016.

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GmbH v. Austria

161

it had introduced the criterion of the reasonable

reader in cases involving satire.

The Court clarified the scope of its examination in cases relating

to comedy shows, observing that the States enjoy a wide margin of

appreciation when dealing with parody.

Unlike the position in other cases concerning satirical forms of

expression (see, for example,

Alves da Silva v. Portugal

162

, and

Welsh and

Silva Canha v. Portugal

163

), the joke in the applicant’s case had not been

made in the context of a debate of public interest. The Court stated that

in such circumstances an obligation could arise under Article 8 for the

State to protect a person’s reputation where the statement went beyond

the limits of what was considered acceptable under Article 10.

***

The judgment in

R.B. v. Hungary

164

concerned the procedural obligation

to investigate racial abuse and threats directed at an individual of

Roma origin.

The applicant, who is of Roma origin, complained to the authorities

that she had been subjected to racial and threatening abuse by a

person taking part in police-supervised anti-Roma marches organised

in her neighbourhood over a period of several days. The prosecuting

authorities ultimately discontinued their investigation into the

applicant’s complaint because they were unable to establish whether the

accused’s act had given rise to the domestic-law offences of harassment

or violence against a member of a group.

In the Convention proceedings, the applicant alleged, among other

things, breaches of Articles 3, 8 and 14 of the Convention. The Court

found a violation of Article 8 on account of the inadequacy of the

investigation into the applicant’s allegations of racially motivated abuse.

The judgment is noteworthy for the following reasons.

In the first place, the Court found that the accused’s utterances

and acts, although overtly discriminatory and to be seen in the light

of the anti-Roma rally in the applicant’s locality, were not so severe as

to cause the kind of fear, anguish or feelings of inferiority needed to

engage Article 3 (compare and contrast cases in which sectarian and

homophobic abuse were accompanied by physical violence:

P.F. and E.F.

161.

162.

163.

164.

Nikowitz and Verlagsgruppe News GmbH v. Austria,

no. 5266/03, 22 February 2007.

Alves da Silva v. Portugal,

no. 41665/07, 20 October 2009.

Welsh and Silva Canha v. Portugal,

no. 16812/11, 17 September 2013.

R.B. v. Hungary,

no. 64602/12, 12 April 2016.

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v. the United Kingdom

165

;

Members of the Gldani Congregation of Jehovah’s

Witnesses and Others v. Georgia

166

; and

Identoba and Others v. Georgia

167

The complaint under Article 3 was therefore manifestly ill-founded.

Secondly, the Court’s finding of a procedural breach of Article 8

represents a new development in the case-law in this area. For the Court,

the applicant was racially abused and threatened because she belonged

to the Roma community. Her ethnic identity was an aspect of her private

life and the abuse and threats to which she had been subjected, bearing

in mind the overall anti-Roma hostility deliberately generated by the

marchers in her neighbourhood, necessarily interfered with her right

to respect for her private life. In the Court’s view, the authorities were

required to take all reasonable steps to unmask any racist motive in the

incident complained of and to establish whether or not ethnic hatred

or prejudice may have played a role in it. They had failed to do so in the

applicant’s case since the investigation carried out into alleged violence

of a member of an ethnic group was too narrow in its scope (the police

limited themselves to assessing whether the accused’s threats had

been directed against the applicant or uttered “in general”) and was

confined by the terms of the relevant criminal law (the provision of the

Criminal Code on harassment did not contain any element alluding to

racist motives).

Thirdly, the judgment is another illustration of the Court’s

condemnation of racism. It emphasised in the judgment that “the

increasingly high standard being required in the area of the protection of

human rights and fundamental liberties correspondingly and inevitably

requires greater firmness in assessing breaches of the fundamental

values of democratic societies … Moreover, … in situations where

there is evidence of patterns of violence and intolerance against an

ethnic minority …, the positive obligations incumbent require a higher

standard of States to respond to alleged bias-motivated incidents”.

***

The judgment in

Biržietis v. Lithuania

168

concerned the absolute prohib-

ition on growing a beard in prison.

The applicant, who was a prisoner at the time, complained of the

absolute prohibition on growing a beard irrespective of its length

165.

P.F. and E.F. v. the United Kingdom

(dec.), no. 28326/09, 23 November 2010.

166.

Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia,

no. 71156/01, 3 May 2007.

167.

Identoba and Others v. Georgia,

no. 73235/12, 12 May 2015.

168.

Biržietis v. Lithuania,

no. 49304/09, 14 June 2016.

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or tidiness, as contained in the internal rules of the prison where he

served his sentence. His objection to the prohibition was ultimately

rejected by the Supreme Administrative Court on the ground that the

wish of a prisoner to grow a beard could not be considered a matter

of fundamental rights unless linked to the exercise of a relevant right

such as the freedom of religion (which was not in issue in the applicant’s

case). It further held that the impugned prohibition could be justified as

a necessary and proportionate measure in view of the prison authorities’

need to be able to identify prisoners quickly.

The Court found that Article 8 had been breached. The following

points are worthy of note.

In the first place, the Court, disagreeing with the domestic court,

observed that the choice to grow a beard should be seen as part of

one’s personal identity and therefore fell within the scope of private life.

Article 8 was therefore applicable. In its conclusion on the violation of

Article 8, it further observed that the applicant’s decision on whether or

not to grow a beard “was related to the expression of his personality and

individual identity [which was] protected by Article 8 of the Convention”.

Secondly, on the question of the necessity of the absolute prohib-

ition, the Court noted that the ban did not appear to cover other types

of facial hair, for example moustaches, thus raising concerns about

the arbitrariness of its application. It was of particular importance

for the Court’s finding of a breach that the Government had failed to

demonstrate the existence of a pressing social need to justify the

prohibition. Significantly, it noted that the Parliamentary Ombudsman

had concluded in a case similar to the applicant’s that the prohibition

could not be justified by considerations of hygiene or by the need to

identify prisoners.

The Court’s judgment is a further illustration of the flexibility of the

notion of “private life” and a confirmation of the established case-law

that prisoners in general continue to enjoy all the fundamental rights

and freedoms guaranteed under the Convention, save for the right to

liberty. There is no question that a prisoner forfeits his or her Convention

rights merely because of his or her status as a person detained

following conviction. The circumstances of imprisonment, in particular

considerations of security and the prevention of crime and disorder,

may justify restrictions on those rights; nonetheless, any restriction

must be justified in each individual case (see, for example,

Dickson v. the

United Kingdom

169

169.

Dickson v. the United Kingdom

[GC], no. 44362/04, ECHR 2007-V.

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***

The judgment in

B.A.C. v. Greece

170

concerned an asylum-seeker’s

prolonged state of uncertainty over his asylum status and the precarious

personal situation caused by it.

The applicant, a Turkish national, arrived in Greece in 2002. His

asylum request – based on his alleged torture in Turkey on account of his

political views – was rejected. He appealed to the competent minster. In

January 2003 the Consultative Commission on Asylum gave a positive

opinion on his request. However the minister had not at the date of

the Court’s judgment taken a position on the request. No reasons had

been given for this. Meanwhile, Turkey had requested the applicant’s

extradition. The request was ultimately rejected by the Greek Court of

Cassation in 2013 with reference to the risk of ill-treatment which the

applicant would face if returned to Turkey.

In the Convention proceedings the applicant alleged among other

things that there had been a breach of his right to respect for his private

life having regard to the lengthy period of uncertainty he had had to

endure coupled with the precariousness of his personal situation. The

Court agreed with the applicant. The judgment is noteworthy in that it

is unusual for the Court to find a breach of Article 8 on account of the

length of time taken to process an asylum request to its conclusion. In

Jeunesse v. the Netherlands

171

, it stressed that, where a Contracting State

tolerates the presence of an alien in its territory thereby allowing him

or her to await a decision on an application for a residence permit, an

appeal against such a decision or a fresh application for a residence

permit, such a Contracting State enables the alien to take part in the

host country’s society, to form relationships and to create a family

there. However, this did not automatically entail that the authorities of

the Contracting State concerned were, as a result, under an obligation

pursuant to Article 8 of the Convention to allow him or her to settle in

their country.

The Court’s finding in the instant case must be seen in context.

As to the question of uncertainty, it drew attention to the following

considerations: the lengthy silence of the minister on the applicant’s

request; the above-mentioned favourable opinion issued by the

Consultative Commission on Asylum on the applicant’s request; the

rejection of Turkey’s extradition request. The uncertainty which the

applicant had experienced and continued to experience over his status

170.

B.A.C. v. Greece,

no. 11981/15, 13 October 2016.

171.

Jeunesse v. the Netherlands

[GC], no. 12738/10, § 103, 3 October 2014.

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was of a different dimension to that felt by an applicant awaiting the

outcome of his or her asylum proceedings, it being understood, the

Court stressed, that such proceedings must be concluded within a

reasonable time (see paragraph 39 of the judgment in this connection

and the support found in

M.S.S. v. Belgium and Greece

172

, cited above).

As to the precariousness of the applicant’s situation, it further observed

among other things that owing to his unresolved status the applicant

faced restrictions in obtaining access to the job market, opening a bank

account, acquiring a tax number and pursuing university studies.

For the Court, the authorities had failed to secure the applicant’s

right to respect for his private life by not putting in place an effective

and accessible procedure which would have allowed the applicant’s

asylum request to be examined within a reasonable time, thus reducing

as much as possible the precariousness of his situation.

***

The judgment in

Vukota-Bojić v. Switzerland

173

concerned the use in

social-insurance proceedings of data compiled by private investigators

on the applicant’s movements.

The applicant was injured in a road accident. The accident gave

rise to various disputes regarding her capacity to work, the causal link

between the alleged extent of her disability and the accident, and the

amount of benefits to which she was entitled. The insurance company

handling the applicant’s case, acting within the framework of powers

conferred on it under the State insurance scheme, decided to place her

under surveillance. Private investigators commissioned by the insurance

company monitored the applicant’s movements on four different dates

over a period of twenty-three days. The insurance company sought to

use the detailed surveillance reports in court proceedings in order to

contest the level of disability alleged by the applicant and the accuracy of

the medical reports she relied on. As to the lawfulness of the monitoring

of the applicant’s movements by private investigators, the Federal Court

ultimately ruled that the measure had been lawful and the evidence so

obtained could be admitted in evidence in the insurance proceedings.

In the Convention proceedings the applicant alleged among

other things that the legal provisions which had served as the basis

of her surveillance lacked clarity and precision, which meant that

the interference with her right to respect for her private life had been

unlawful and therefore in breach of Article 8 of the Convention.

172.

M.S.S. v. Belgium and Greece

[GC], no. 30696/09, § 262, ECHR 2011.

173.

Vukota-Bojić v. Switzerland,

no. 61838/10, 18 October 2016.

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The Court ruled in favour of the applicant, finding that the interference

was not “in accordance with the law”. The judgment is of interest in

that the Court concluded that the acts of surveillance and hence the

interference with the applicant’s Article 8 right were attributable to the

State. It noted that the insurance company, although a private body,

was implementing the State insurance scheme under delegated powers

and was regarded in domestic law as a public authority. On that account

the applicant’s case was to be distinguished from the earlier case of

La Flor Cabrera v. Spain

174

, where the Court was called upon to decide

whether Spain had discharged its positive obligations to secure the

right to respect for private life in the context of surveillance measures

ordered by a private insurance company with no link to the State.

The judgment is also noteworthy as regards the Court’s approach to

the issue of “interference” given that the monitoring of her activities was

limited to the video-recording and photographing of her behaviour in

public when going about her business. On that point the Court noted

(paragraph 58):

“… the applicant was systematically and intentionally watched and

filmed by professionals acting on the instructions of her insurance

company on four different dates over a period of twenty-three days.

The material obtained was stored and selected and the captured

images were used as a basis for an expert opinion and, ultimately,

for a reassessment of her insurance benefits.”

Finally, the Court’s assessment of the legal basis for the surveillance

is of significance given the circumstances of the case, and in particular

its acceptance that the surveillance must be seen to have interfered less

with her private life than, for instance, telephone tapping.

The Court was critical of the following shortcomings in the level of

safeguards in place to prevent abuse: the legislative framework had failed to

indicate any procedures to be followed for the authorisation or supervision

of the implementation of secret surveillance measures in the specific

context of insurance disputes; in the absence of any details as regards the

maximum duration of the surveillance measures or the possibility of their

judicial challenge, insurance companies (acting as public authorities) were

granted a wide discretion in deciding on the circumstances which justified

surveillance measures and their duration; the legal provisions were silent

on the procedures to be followed for storing, accessing, examining,

using, communicating or destroying the data collected by means of

secret surveillance. The Court also attached weight to the fact that in the

applicant’s case a number of matters remained unclear: (i) the place and

174.

De La Flor Cabrera v. Spain,

no. 10764/09, 27 May 2014.

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length of storage of the report containing the impugned footage and

photographs, (ii) the persons who could access it, and (iii) the existence of

legal means of contesting the handling of said report.

Private and family life

The

Ramadan v. Malta

175

judgment concerned the issue of revocation of

acquired citizenship.

The applicant, an Egyptian national at the time, acquired Maltese

citizenship by reason of his marriage to a Maltese national in 1993. A

child was born of the marriage. The marriage was annulled in 1998.

The applicant subsequently remarried in Malta, this time to a Russian

national with whom he had two children, both of whom were Maltese

nationals. The authorities revoked the applicant’s citizenship in 2007 on

the ground that his marriage to the Maltese citizen had been simulated

since the only reason he had married her had been to acquire Maltese

citizenship. The applicant, who was represented by a lawyer, was heard

by the authorities before they came to their decision and he later

unsuccessfully mounted a constitutional challenge to that decision.

The applicant contended that the decision to deprive him of his

Maltese citizenship breached his rights under Article 8 of the Convention,

asserting among other things that he was now stateless since he had

had to renounce his Egyptian citizenship in order to become a citizen of

Malta and was now at risk of removal. The Court found otherwise.

In previous cases, the Court had observed that, although the right to

citizenship is not as such guaranteed by the Convention or its Protocols,

it could not be ruled out that an arbitrary denial of citizenship might in

certain circumstances raise an issue under Article 8 of the Convention

because of its impact on the private life of the individual (see

Karassev v.

Finland

176

Slivenko and Others v. Latvia

177

Savoia and Bounegru v. Italy

178

and

Genovese v. Malta

179

). Although most of the cases concerning

citizenship brought before the Court had concerned applicants claiming

the right to acquire citizenship and the denial of recognition of such

citizenship, this was the first case in which the Court had had to address

the revocation of citizenship. Significantly, the Court observed that the

loss of citizenship already acquired or born into can have the same (and

possibly a bigger) impact on a person’s private and family life. On that

account there was no reason to distinguish between the two situations

175.

176.

177.

178.

179.

Ramadan v. Malta,

no. 76136/12, ECHR 2016 (extracts).

Karassev v. Finland

(dec.), no. 31414/96, ECHR 1999-II.

Slivenko and Others v. Latvia

(dec.) [GC], no. 48321/99, § 77, ECHR 2002-II (extracts).

Savoia and Bounegru v. Italy

(dec.), no. 8407/05, 11 July 2006.

Genovese v. Malta,

no. 53124/09, § 30, 11 October 2011.

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and the same test should therefore apply. Thus, an arbitrary revocation of

citizenship might in certain circumstances raise an issue under Article 8

because of its impact on the private life of the individual.

The Court’s analysis of whether or not the decision to revoke the

applicant’s Maltese citizenship complied with Article 8 was based on two

considerations: firstly, whether the decision to withdraw the applicant’s

citizenship was arbitrary and, secondly, the impact of the decision on

the applicant’s situation.

As to the former, it noted that there was a clear legal basis for revoking

the applicant’s citizenship and the applicant had been afforded hearings

and remedies consistent with procedural fairness. It is noteworthy that

the Court addressed the delay in adopting the decision given the time

that had elapsed between the annulment of the applicant’s marriage and

the adoption of the revocation decision. On that point it noted among

other things that any delay had not disadvantaged the applicant, who

had continued to benefit from the situation complained of (compare

Kaftailova v. Latvia

180

), bearing in mind also that that situation had

come about as a result of the applicant’s fraudulent behaviour and any

consequences complained of were to a large extent a result of his own

choices and actions (compare

Shevanova v. Latvia

181

As regards the consequences of the withdrawal of citizenship, it

observed among other things that the applicant was not currently at risk

of removal from Malta (and therefore not a victim of a breach of Article 8

in so far as the removal order was concerned); he had been able to pursue

his business activities and to reside in Malta and it was still open to him

to apply for a work permit and a residence permit in Malta, which could

eventually make him eligible for citizenship; he had not substantiated his

claim that he had relinquished his Egyptian nationality nor demonstrated

that he would not be able to reacquire it if he had done so.

Family life

182

The judgment in

Paposhvili

183

, cited above, concerned the deportation

of a seriously ill foreigner who risked being separated from his wife and

three children.

180.

Kaftailova v. Latvia

(striking out) [GC], no. 59643/00, § 53, 7 December 2007.

181.

Shevanova v. Latvia

(striking out) [GC], no. 58822/00, § 49, 7 December 2007.

182. See also, under

Article 1, Article 5

and

Article 13,

Mozer v. the Republic of Moldova and

Russia

[GC], no. 11138/10, ECHR 2016, under

Article 3,

A.B. and Others v. France,

no. 11593/12,

12 July 2016, and

Paposhvili v. Belgium

[GC], no. 41738/10, 13 December 2016, and, under

Article 8

and

Article 14,

Di Trizio v. Switzerland,

no. 7186/09, 2 February 2016, and

Pajić v.

Croatia,

no. 68453/13, 23 February 2016.

183.

Paposhvili v. Belgium

[GC], no. 41738/10, ECHR 2016, see also under

Article 3

above.

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The applicant, a Georgian national, faced deportation and a ban on

re-entering Belgium for ten years on public-interest grounds (he had

several criminal convictions). While in prison, he was diagnosed and

treated for serious illnesses. Since the domestic proceedings he brought

to challenge his removal on medical grounds were unsuccessful, he

complained to the Court,

inter alia

under Article 8 of being separated

from his wife and three children who had been granted indefinite leave

to remain in Belgium. The applicant died in June 2016.

The Grand Chamber found that his removal would have violated

Article 8.

The Grand Chamber reiterated the procedural obligation under that

provision to assess the impact of the applicant’s removal on his family

life given his state of health and, notably, clarified that the authorities

should have examined whether, in the light of the applicant’s specific

situation at the time of removal, the family could reasonably have been

expected to follow him to Georgia or, if not, whether observance of the

applicant’s right to respect for his family life required that he be granted

leave to remain in Belgium for the time he had left to live. His removal

without an assessment of these factors would have given rise to a

violation of Article 8 of the Convention.

***

The

Kocherov and Sergeyeva v. Russia

184

judgment concerned the

obligations of national courts when restricting the parental rights of

parents with disabilities.

The first applicant, who had a mild intellectual disability, lived for

twenty-nine years in a neuropsychological care home. He married

a fellow resident of the home who had been deprived of her legal

capacity on mental-health grounds. The couple had a daughter (the

second applicant) who was placed in a children’s home as a child

without parental care. The first applicant was registered as her father. He

consented to her staying at the children’s home until it became possible

for him to take care of her. Throughout the second applicant’s stay there,

he maintained regular contact with her. His marriage to the second

applicant’s mother was declared void shortly afterwards because of her

legal incapacity.

The first applicant left the care home to move into social housing

and expressed his intention to have the second applicant live with him

under his care. However, the children’s home applied for a court order

restricting his parental authority, arguing that the second applicant had

184.

Kocherov and Sergeyeva v. Russia,

no. 16899/13, 29 March 2016.

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difficulties in communicating with her parents and that she felt anxiety

and stress in their presence. The first applicant produced an expert

report on his discharge from the care home which concluded that his

state of health enabled him to exercise fully his parental authority. He

also produced a report by the custody and guardianship authority which

described the living conditions in his accommodation as appropriate for

his daughter.

The district court decided to restrict for the time being the first

applicant’s parental authority over his daughter. Relying in particular

on statements by the representatives of the children’s home, it found

that the first applicant was not yet ready to look after his daughter, who

therefore had to remain in public-authority care. The district court’s

decision was upheld on appeal. The first applicant then lodged an

application with the Court.

A year later, after the commencement of the Convention proceedings

and after the first applicant’s wife had recovered her legal capacity and

the couple had remarried, the restriction on the first applicant’s parental

authority was finally lifted.

The Court examined the case under Article 8. It is of interest that,

while it found the reasons relied on by the domestic courts to be relevant,

it considered them insufficient to justify such an interference with the

applicant’s family life. The Court closely examined the reasoning of the

domestic courts in order to determine whether the interference was

proportionate to the pursued legitimate aim of child protection.

It found that the first applicant’s prolonged residence in a specialist

institution could not by itself be regarded as a sufficient ground to

prevent him from recovering his parental authority. Domestic courts had

to take into account and analyse, in the light of the adduced evidence,

parents’ emotional and mental maturity and their ability to take care

of their children. In the instant case, the first applicant’s evidence had

never been challenged by his adversary, who had not produced other

evidence calling it into question. A mere reference to the first applicant’s

diagnosis, without taking into account his aptitude to be a parent

and his actual living conditions, was not a “sufficient” reason to justify

a restriction on his parental authority. Likewise, the mother’s legal

incapacity could not by itself justify the refusal of the first applicant’s

request. The domestic courts should have decided the case by reference

to the first applicant’s behaviour and given valid and sufficient reasons

for rejecting his request.

The judgment thus highlights the obligation Article 8 imposes on

national courts to have regard to the interests of disabled parents and to

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fully examine their arguments when their parental rights are challenged

by official child-protection authorities.

Home

The

Ivanova and Cherkezov v. Bulgaria

185

judgment concerned the

imminent execution of a demolition order and the scope of the pro-

tection afforded to a home with no planning permission.

The applicants built a house without planning permission. The

local authority served a demolition order on them. The first applicant

brought judicial review proceedings to challenge the lawfulness of

the order arguing, among other things, that the execution of the order

would entail for her the loss of her only home. The domestic courts

ruled against her, finding that the house had been built unlawfully and

its construction could not be legalised under the transitional amnesty

provisions of the governing legislation.

The Court found that the circumstances of the case gave rise to a

breach of Article 8 of the Convention but no breach of Article 1 of

Protocol No. 1. Its reasoning for so doing is interesting in that it illustrates

the difference in the interests protected by the respective provisions

and hence the scope of protection afforded by them, especially when it

comes to the application of the proportionality requirement to the facts

of a particular case.

As to the Article 8 complaint, the Court essentially focused on

whether the demolition would be “necessary in a democratic society”.

Its approach to that question was informed by its judgments in

previous cases in which it had read into domestic procedures to evict

tenants from public-sector housing (see, for example,

McCann v. the

United Kingdom

186

;

Paulić v. Croatia

187

; and

Kay and Others v. the United

Kingdom

188

) or occupiers from publicly owned land (see, for example,

Chapman v. the United Kingdom

189

) a requirement to afford due respect

to the interests protected by Article 8, given that the loss of one’s home

is an extreme form of interference with the right to respect for one’s

home (see, for example,

McCann,

§ 49), regardless of whether the person

concerned belongs to a vulnerable group.

185.

Ivanova and Cherkezov v. Bulgaria,

no. 46577/15, 21 April 2016. See also under

Article 1

of Protocol No. 1

below.

186.

McCann v. the United Kingdom,

no. 19009/04, § 46, ECHR 2008.

187.

Paulić v. Croatia,

no. 3572/06, 22 October 2009.

188.

Kay and Others v. the United Kingdom,

no. 37341/06, 21 September 2010.

189.

Chapman v. the United Kingdom

[GC], no. 27238/95, ECHR 2001-I.

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This is the first case in which the Court has applied that requirement –

essentially an individualised proportionality assessment – to the

imminent loss of one’s home consequent to a decision to demolish it

on the ground that it had been knowingly constructed in breach of

planning regulations.

The Court’s finding of a breach of Article 8 was based on the fact

that the domestic courts were only required to have regard to the

matter of illegality, and they confined themselves to that issue to the

exclusion of any consideration of the possible disproportionate effect

of the implementation of the demolition order on the applicants’

personal situation.

***

The judgment in

K.S. and M.S. v. Germany

190

concerned a search of the

applicants’ home on the basis of a warrant issued on the strength of

evidence allegedly obtained in breach of domestic and international law.

The German tax authorities instigated proceedings against the

applicants for suspected tax evasion. The proceedings were triggered

following receipt of information about the applicants’ assets held in a

Liechtenstein bank. The information (together with data relating to

many other account holders domiciled in Germany for tax purposes)

had been illegally copied by an employee of the bank and purchased by

the German secret service before finding its way to the tax authorities.

Relying on this information, a prosecutor obtained a warrant from a

court for a search of the applicants’ home. The applicants’ challenge to

the lawfulness of the search was ultimately dismissed by the Federal

Constitutional Court, which found it to be settled case-law that there

was no absolute rule that evidence which had been acquired in violation

of procedural rules could not be used in criminal proceedings. The

Federal Constitutional Court did not find it necessary to decide whether

the data had been obtained in breach of international and domestic law,

as the lower court was prepared to assume that the evidence might in

fact have been acquired unlawfully. In the Convention proceedings the

applicants invoked Article 8 of the Convention.

The Court found that the Convention had not been breached. The

judgment is of interest in that the Court had to address the question

whether an interference with the right to respect for one’s home could

be considered lawful (“in accordance with the law”) notwithstanding

that the interference had its origin in information which had been

(allegedly) obtained in breach of domestic and international law.

190.

K.S. and M.S. v. Germany,

no. 33696/11, 6 October 2016.

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In the context of Article 6 of the Convention the Court has repeatedly

found that the admission and use of evidence obtained in breach of

domestic law did not automatically give rise to unfairness (see, for

example,

Bykov v. Russia

191

). This would appear to be the first occasion

on which the Court has had to determine whether such evidence

undermined the lawfulness requirement of Article 8.

It held that in view of the answer provided by the Constitutional Court

to the applicants’ complaint (see above), the interference had a basis in

domestic law (the relevant provisions of the Code of Criminal Procedure)

and that the applicants had been able to foresee – if necessary with the

aid of legal advice – that the domestic authorities would consider that

the search warrant could be based on the Liechtenstein data despite

the fact that they may have been acquired in breach of domestic or

international law.

The Court returned to this issue when examining the necessity test, in

particular the existence of safeguards to avoid arbitrariness and to ensure

respect for the proportionality principle in the issue and execution of the

warrant (see, for example,

Société Colas Est and Others v. France

192

and

Buck v. Germany

193

). It observed among other things that the search had

been ordered by a judge; the evidence relied on had not been the result

of a serious deliberate or arbitrary breach of procedural rules which

systematically ignored constitutional safeguards; and the lawfulness

of the warrant was the subject of

ex post facto

judicial review. On the

proportionality issue, it was noted,

inter alia,

that the Liechtenstein data

were the only evidence available at the relevant time that suggested

that the applicants might have evaded paying tax, and the search

warrant appeared to have been the only means of establishing whether

the applicants were in fact liable for tax evasion, a serious offence.

There was no indication that the tax authorities at the relevant time had

deliberately and systematically breached domestic and international

law in order to obtain information relevant to the prosecution of tax

crimes or were purposely acting in the light of any established domestic

case-law confirming that unlawfully obtained tax data could be used to

justify a search warrant. Furthermore, the German authorities, in issuing

the search warrant, had not relied on real evidence obtained as a direct

result of a breach of one of the core rights of the Convention. In view of

these and other considerations, the Court concluded that the impugned

evidence, even accepting that it was tainted with illegality, had not

191.

Bykov v. Russia

[GC], no. 4378/02, §§ 89-91, 10 March 2009.

192.

Société Colas Est and Others v. France,

no. 37971/97, § 48, ECHR 2002-III.

193.

Buck v. Germany,

no. 41604/98, § 45, ECHR 2005-IV.

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undermined the arguments in favour of the necessity of its use. Article 8

of the Convention had not been breached.

Correspondence

The judgment in

D.L. v. Bulgaria

194

, cited above, concerned,

inter alia,

the right of minors detained in a closed educational institution to

communicate with the outside world. The applicant, a minor, was placed

in a closed educational institution on account of, among other things,

her antisocial behaviour and the risk that she would become further

involved in prostitution.

In the Convention proceedings, the applicant alleged that her

correspondence and telephone conversations with third parties were

automatically and systematically monitored or supervised, in breach of

Article 8. The Court found a breach of that provision.

The Court emphasised the distinction to be drawn between minors

placed under educational supervision and prisoners when it comes

to the application of restrictions on correspondence and telephone

communications. The margin of appreciation enjoyed by the authorities

is more restricted in the case of the former.

The Court observed that the monitoring of the applicant’s

correspondence with the outside world was automatically and

systematically enforced with no regard being had to the status of the

addressee. While such a blanket control was of itself problematic when

applied to a prisoner, the Court stressed the specific needs of young

people placed in closed educational institutions who have not been

convicted of criminal offences. The purpose of their confinement was

to ensure that they are provided with education and assisted with their

preparation for their return to society. The authorities were thus obliged

to see to it that minors had sufficient contact with the outside world,

including by means of written correspondence. In the instant case the

restrictions imposed on the applicant were indiscriminate with the

result that letters she might wish to send to or receive from her lawyer

or an interested non-governmental organisation would not be treated

as confidential. In addition, monitoring of correspondence was without

limitation in time and the authorities were not required to justify the

decisions they had taken.

The Court was equally critical of the restrictions placed on the

applicant’s use of the telephone. The telephone conversations of all

minors in the institution were supervised with no assessment made of

194.

D.L. v. Bulgaria,

no. 7472/14, 19 May 2016. See also

Article 5 § 1 (d)

above.

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whether, for example, the correspondent was a family member or if a

phone call could pose a possible risk to the security of the institution.

Freedom of thought, conscience and religion (Article 9)

Freedom of religion

195

İzzettin Doğan and Others v. Turkey

196

concerned the State’s obligation of

impartiality and neutrality as regards religious beliefs.

The applicants are followers of the Alevi faith to whom the State

authorities had refused to provide the same religious public service

accorded to the majority of citizens who are of the Sunni branch of

Islam. They complained under Article 9 that this implied an assessment

of the Alevi faith by the national authorities in breach of the State’s

obligation of neutrality and impartiality, and under Article 14 that they

had therefore received less favourable treatment than followers of the

Sunni branch of Islam in a comparable situation.

The Grand Chamber found a violation of Article 9 taken alone and in

conjunction with Article 14.

The Grand Chamber did not confine itself to the discrimination

complaint (Article 14 in conjunction with Article 9), but also found a

separate violation of Article 9 alone (the negative obligation). In so

doing, it found that the authorities’ failure to recognise the religious

nature of the Alevi faith (and of maintaining it within the banned Sufi

orders) amounted to denying the Alevi community the recognition that

would allow its members to “effectively enjoy” their right to freedom

of religion in accordance with domestic legislation. In particular, it was

found that the impugned refusal denied the autonomous existence of

the Alevi community and made it impossible for its members to use

their places of worship and the titles of their religious leaders.

In examining the Article 9 complaint, the Grand Chamber noted,

at the outset, that it was not for the Court to express an opinion on

the theological debate opened before it (concerning the Alevi faith

and the Muslim religion) so that its references to the Alevi faith, and

the community founded on that faith, were limited to finding that

Article 9 applied.

In finding a violation of Article 9, the Grand Chamber reiterated a

number of principles previously cited mainly in Chamber cases and,

notably, highlighted two aspects of the State’s obligation of neutrality

and impartiality.

195. See also, under

Article 5 § 1

above,

Mozer v. the Republic of Moldova and Russia

[GC],

no. 11138/10, ECHR 2016.

196.

İzzettin Doğan and Others v. Turkey

[GC], no. 62649/10, ECHR 2016.

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(i) While the role of the State as the neutral and impartial organiser of

the exercise of various religions, faiths and beliefs might allow it to assess

certain objective elements (such as the “level of cogency, seriousness,

cohesion and importance” of a belief ), that role excluded “any discretion

on [the State’s] part to determine whether religious beliefs or the means

used to express such beliefs are legitimate” (see

Manoussakis and Others

v. Greece

197

;

Hasan and Chaush v. Bulgaria

198

; and

Fernández Martínez v.

Spain

199

). The right enshrined in Article 9 “would be highly theoretical

and illusory if the degree of discretion granted to States allowed them

to interpret the notion of religious denomination so restrictively as to

deprive a non-traditional and minority form of religion, such as the Alevi

faith, of legal protection (see,

inter alia,

Kimlya and Others v. Russia

200

and

Magyar Keresztény Mennonita Egyház and Others v. Hungary

201

(ii) The corollary of that obligation of neutrality and impartiality was

the principle of autonomy of religious communities, according to which it

was the task of the highest spiritual authorities of a religious community

to determine to which faith that community belonged. Only the most

serious and compelling reasons could justify State intervention. The

Court found that the respondent State’s attitude towards the Alevi faith

breached the right of the Alevi community to an autonomous existence,

which was at the very heart of the guarantees in Article 9 (see,

mutatis

mutandis,

Miroļubovs and Others v. Latvia

202

, and

Religionsgemeinschaft

der Zeugen Jehovas and Others v. Austria

203

Moreover, in describing the requirements and value of a pluralist

society, the Court opined that “[r]espect for religious diversity

undoubtedly represents one of the most important challenges to be

faced today; for that reason, the authorities must perceive religious

diversity not as a threat but as a source of enrichment” (see,

mutatis

mutandis,

Nachova and Others v. Bulgaria

204

197.

Manoussakis and Others v. Greece,

26 September 1996, § 47,

Reports of Judgments and

Decisions

1996-IV.

198.

Hasan and Chaush v. Bulgaria

[GC], no. 30985/96, § 78, ECHR 2000-XI.

199.

Fernández Martínez v. Spain

[GC], no. 56030/07, § 129, ECHR 2014 (extracts).

200.

Kimlya and Others v. Russia,

nos. 76836/01 and 32782/03, § 86, ECHR 2009.

201.

Magyar Keresztény Mennonita Egyház and Others v. Hungary,

nos. 70945/11 and 7 others,

§ 88, ECHR 2014 (extracts).

202.

Miroļubovs and Others v. Latvia,

no. 798/05, §§ 86 (g) and 90, 15 September 2009.

203.

Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria,

no. 40825/98, § 79,

31 July 2008.

204.

Nachova and Others v. Bulgaria

[GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII.

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Manifest one’s religion or belief

The judgment in

Süveges v. Hungary

205

concerned house arrest and

its consequences for the applicant’s right to manifest his religion in

community with others.

The applicant, who had previously been in custody while awaiting

trial, was ordered to be placed under house arrest. In the Convention

proceedings, he alleged, among other things, that the restrictions

accompanying his house arrest prevented him from attending Sunday

Mass and thus infringed his right to manifest his religion. He relied on

Article 9 of the Convention.

This was the first occasion on which the Court had to address the

compatibility of house arrest with the exercise of Article 9 rights.

The Court noted that had the applicant remained in pre-trial

detention, rather than being placed under house arrest, he would in

all likelihood have been able to take advantage of religious services

at his place of detention. His inability to attend Mass, and thus the

interference with his right to manifest his religion in community with

others, had resulted from the decision to release him from custody and

to impose a less coercive form of deprivation of liberty in order to secure

his presence during the criminal proceedings. In the circumstances, the

Court found that there had been no violation of Article 9. In examining

the proportionality of the impugned restriction, it noted, firstly, and

without further elaboration, that the very essence of the applicant’s

right to manifest his religion had not been impaired and, secondly,

when requesting leave to attend Sunday Mass the applicant had failed

to specify the time and place of worship. The latter consideration had

weighed heavily in the domestic authorities’ decision to refuse leave.

Having regard to the margin of appreciation available to the authorities,

the Court saw no reason to question that finding.

Positive obligations

The judgment in

Papavasilakis v. Greece

206

concerned the procedural

requirements applicable to the assessment of the genuineness of an

objection to military service.

The applicant objected on ideological grounds to performing

military service. He sought an exemption, being willing to undertake

alternative civil duties. His application was considered by a commission

which was empowered, following interview, to advise the Ministry of

Defence on whether an exemption should be granted. On the day the

205.

Süveges v. Hungary,

no. 50255/12, 5 January 2016.

206.

Papavasilakis v. Greece,

no. 66899/14, 15 September 2016.

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applicant was interviewed, and due to absences of civil members, the

commission comprised only two senior military officers and a member

of the State Legal Service (who presided over the proceedings). The

applicant’s request for exemption was ultimately rejected by the Ministry

of Defence. The Court of Cassation rejected his legal challenge. The

applicant alleged in the Convention proceedings that there had been a

breach of Article 9 having regard to the composition of the commission

which examined his request for exemption.

The Court found a breach of Article 9. The judgment is interesting in

that it addresses the scope of the State’s positive obligation in the area

of conscientious objection. The case-law has already established that a

procedure must be in place which allows a conscientious objector the

possibility of explaining the reasons for his opposition to military service

in terms of his religious or philosophical beliefs and an assessment to be

made of whether or not those beliefs are genuinely held (see, for example,

Bayatyan v. Armenia

207

and

Savda v. Turkey

208

). Greece did have such a

procedure. However, the Court found it to be deficient in the applicant’s

case since military officers outnumbered civilians on the occasion of the

applicant’s interview because of the failure to replace the absent civilian

members. On that account, the applicant could legitimately fear that it

would be impossible for him to obtain the understanding of the military

officers for his ideological-based opposition to military service and

thus a positive recommendation from the commission on his request

for exemption.

Freedom of expression (Article 10)

Applicability

In its judgment in

Semir Güzel v. Turkey

209

the Court examined the ques-

tion of conduct as a form of expression protected by Article 10.

The applicant was prosecuted for allowing participants at a

general congress of a political party to speak in Kurdish during their

interventions. The applicant, who was the Vice-President of the party,

chaired the congress. At the relevant time, it was a criminal offence for

a political party to use any language other than Turkish at congresses

and meetings.

The Court found a breach of Article 10 since the interference was not

“prescribed by law”. The case is interesting as regards the applicability

of that provision. It had not been alleged that the applicant had

207.

Bayatyan v. Armenia

[GC], no. 23459/03, ECHR 2011.

208.

Savda v. Turkey,

no. 42730/05, 12 June 2012.

209.

Semir Güzel v. Turkey,

no. 29483/09, 13 September 2016.

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taken the floor at the meeting in Kurdish, nor that he had encouraged

those present to do so. The criminal charge against him related to his

failure, as chairman, to intervene to prevent delegates from expressing

themselves in Kurdish, despite warnings from a government official

present at the meeting. The Court found that the applicant could rely

on the protection of Article 10. It had regard to previous cases in which

it had concluded that an individual’s acts or conduct could amount to

a form of expression. In deciding whether an act or conduct fell within

the ambit of Article 10, an assessment had to be made of the nature of

the act or conduct in question, in particular of its expressive character

seen from an objective point of view, as well as of the purpose or the

intention of the person performing the act or engaging in the conduct

in question (Murat

Vural v. Turkey

210

In the circumstances of the applicant’s case, the Court observed that

his conduct, viewed from an objective point of view, could be seen as

an expressive act of defiance towards an authority representing the

State. Furthermore, the Court noted that in the course of the criminal

proceedings against him the applicant made it very clear that he had

not used his power as chairman to intervene when certain delegates

spoke in Kurdish because of his view that Kurdish should be used in all

areas of life; that those who spoke Kurdish were speaking in their mother

tongue; and that he believed that it was neither legal nor ethical for him

to intervene and to force people to speak in a language other than their

mother tongue. For the Court, the applicant had exercised his right to

freedom of expression within the meaning of Article 10, which provision

applied in the case.

Freedom of expression

The

Karácsony and Others v. Hungary

211

judgment related to procedural

safeguards in disciplinary procedures against parliamentarians

considered to have acted in a manner gravely offensive to parlia-

mentary order.

The applicants, who were opposition members of parliament (MPs),

were disciplined and fined for their conduct during a parliamentary

session (they displayed banners during the session and one used a

megaphone). They complained under Article 10 of the Convention

alone and in conjunction with Article 13. The Grand Chamber found that

there had been a violation of Article 10 (lack of effective and adequate

safeguards) and that no separate issue existed under Article 13.

210.

Murat Vural v. Turkey,

no. 9540/07, § 54, 21 October 2014.

211.

Karácsony and Others v. Hungary

[GC], no. 42461/13, ECHR 2016.

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This was the first case where the Court was required to examine the

extent to which a Parliament is entitled to autonomously regulate its

own internal affairs and, in particular, to restrict the expression rights of

MPs in Parliament. The judgment begins by setting out comprehensively

the Court’s case-law concerning the various elements to be balanced in

the Convention review of the interference with MPs’ expression rights.

(i) On the one hand, the procedural guarantees of Article 10 were

to be taken into account when assessing the proportionality of such

an interference (see, in particular,

Association Ekin v. France

212

;

Lombardi

Vallauri v. Italy

213

; and

Cumhuriyet Halk Partisi v. Turkey

214

), as was the

Court’s case-law concerning the freedom of expression of MPs, especially

in Parliament. In this latter respect, the Court made a novel distinction

between restrictions on the substance of an MP’s expression – in respect

of which Parliaments had very limited latitude – and controlling the

means (“time, place and manner”) of such expression (which was in

issue in the present case), which was to be independently regulated by

Parliament and to which a broad margin of appreciation applied.

(ii) On the other hand, the Court detailed its understanding of the

widely recognised principle of the autonomy of Parliament to,

inter alia,

regulate its own internal affairs which evidently extended to Parliament’s

power to enforce rules aimed at ensuring the orderly conduct of

parliamentary business, essential for a democratic society. This being

the aim, the margin of appreciation accorded was a wide one. It was not,

however, unfettered: the Grand Chamber clarified that parliamentary

autonomy should not be used to suppress expression by minority MPs

or as a basis for the majority to abuse its dominant position, so that the

Court would examine with particular care any measure which appeared

to operate solely or principally to the disadvantage of the opposition;

nor could parliamentary autonomy be relied upon to justify imposing a

sanction which was clearly in excess of Parliament’s powers, arbitrary or

mala fide.

Secondly, as to the proportionality of the interference, the Grand

Chamber concentrated its analysis on whether that restriction had

been accompanied by “effective and adequate safeguards against

abuse”, noting that it was dealing with an

ex post facto

penalty

(imposed sometime after the conduct in question) and not a sanction

required immediately.

212.

Association Ekin v. France,

no. 39288/98, § 61, ECHR 2001-VIII.

213.

Lombardi Vallauri v. Italy,

no. 39128/05, § 46, 20 October 2009.

214.

Cumhuriyet Halk Partisi v. Turkey,

no. 19920/13, § 59, ECHR 2016.

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It is noteworthy that, despite the above-noted broad margin of

appreciation given the principle of parliamentary autonomy, the

Grand Chamber found that certain procedural safeguards should, as a

minimum, be available during such a parliamentary disciplinary process.

The first was the “right for [an] MP to be heard in a parliamentary

procedure” before any sanction was imposed. The Court noted, as

a source supplemental to its own case-law, that the right to be heard

increasingly appeared as a basic procedural rule in democratic States,

over and above judicial procedures, as demonstrated,

inter alia,

Article 41 § 2 (a) of the

Charter of Fundamental Rights of the European

Union.

The implementation of that right to be heard had to be adapted

to the parliamentary context to ensure the fair and proper treatment of

the parliamentary minority and to avoid abuse by the dominant party

so that,

inter alia,

the Speaker of Parliament had to act “in a manner that

is free of personal prejudice or political bias”. The second procedural

safeguard required was that the decision imposing a sanction on the MP

should “state basic reasons” so the MP could understand the justification

for the measure and so there could be public scrutiny of it.

Thirdly, worth mentioning also is the comprehensive comparative-

law survey carried out by the Court as regards disciplinary measures

applicable to MPs for disorderly conduct in Parliaments in the law of

forty-four of the forty-seven member States of the Council of Europe, to

which survey the Grand Chamber extensively referred in its judgment.

***

The

Baka

215

judgment, cited above, concerned the termination of a

judge’s mandate as a result of comments he had made in public.

The applicant, a former judge of the European Court of Human Rights,

publicly criticised, in his capacity as President of the Hungarian Supreme

Court, proposed legislative reforms of the judiciary. Subsequent

constitutional and legislative changes resulted in the premature

termination of his mandate as President and excluded the possibility of

judicial review of that termination.

In the Convention proceedings, he complained,

inter alia,

under

Article 10 of a disproportionate interference with his freedom of

expression. The Grand Chamber found a violation of that provision.

One of the most interesting aspects of the complaint under Article 10

was the assessment of whether the termination of the applicant’s

mandate amounted to an interference with his Article 10 rights or

whether it merely affected his holding a public office (a right not

215.

Baka v. Hungary

[GC], no. 20261/12, ECHR 2016. See also under

Article 6

above.

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guaranteed by the Convention). To answer this question the Court had

to determine “the scope of the measure ... by putting it in the context of

the facts of the case and of the relevant legislation”. In addition, the Court

had to decide on the standard of proof to be applied to this assessment

which, based on its case-law, was to be the standard of “beyond

reasonable doubt” as interpreted and applied by this Court. While the

Court’s principles as to this standard of proof had most usually been

applied in Article 2, 3 and 5 contexts, those principles were considered

particularly relevant where, as in the present case, no domestic court

had been able to examine the facts. Turning to those facts, the Court

studied the sequence of events, found that there was a prima facie case

in favour of the applicant’s version of events, considered that the burden

of proof shifted to the Government (not least as the reasons behind the

termination lay within the knowledge of the Government and had never

been reviewed by a domestic court) and decided that the Government

had not discharged that onus of proof (either through the reasons

provided at the time domestically or to the Court) to explain why the

termination of the applicant’s mandate had been necessary. The Court

concluded that that termination was indeed prompted by his expressed

views and criticisms so that it constituted an interference with his

freedom of expression.

In addition, it is noteworthy that, while the Court had already

expressed doubts as to the compliance of the impugned legislation with

the rule of law, the Court was prepared to assume that it was nevertheless

“prescribed by law” so as to allow it to proceed to the next stages of its

analysis. In addition, while the Court considered that the termination

of the applicant’s mandate was incompatible with the “legitimate

aim” invoked by the Government, the Court considered it important

nevertheless to go on to examine the necessity of the interference.

Finally, that necessity assessment is preceded by the Court’s

confirmation of its previous case-law concerning the freedom of

expression of judges. The Court was able to deal relatively briefly with

the necessity of the interference, with certain evidently important factors

being emphasised, such as the particular importance of the applicant’s

office, the functions and duties of which included expressing his views

on legislative reforms likely to have an impact on the judiciary and its

independence. The applicant had stayed within this strictly professional

perspective so his expression clearly concerned a debate on a matter

of “great public interest”. This meant that the applicant’s “position

and statements” called for a “high degree of protection”, for “strict

scrutiny” of any interference therewith as well as for a “correspondingly

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narrow margin of appreciation”. Emphasising the importance of the

independence and irremovability of judges, noting the chilling effect

of the premature termination of the applicant’s mandate on other

judges and given the lack of effective and adequate safeguards against

abuse (see the violation of Article 6 § 1

216

) which are required by the

procedural aspect of Article 10, the Court concluded that it had not

been shown that the premature termination of the applicant’s mandate

was necessary in a democratic society and found that there had been a

violation of Article 10.

***

The judgment in

Novikova and Others v. Russia

217

concerned persons who

staged solo demonstrations in the street on subjects of public interest,

holding up placards. The actions of each applicant were peaceful and

did not impede the movement of pedestrians or road traffic.

The applicants complained that the authorities had regarded their

individual actions as a collective public event under the law on public

assembly and thus subject to prior notice. The police had therefore put

a stop to their actions and taken them to the police station, where they

were detained. Some of them were found guilty of an administrative

offence and fined. For the applicants, it was, on the contrary, a static solo

demonstration not subject to an obligation under domestic law to give

prior notice.

This judgment, which concerned a very specific situation in matters

of freedom of expression, is of some interest.

The Court viewed the applicants’ actions as a form of political

expression (compare with

Tatár and Fáber v. Hungary

218

) and examined

the case under Article 10 taking account of case-law principles related

to Article 11.

Particular attention was given to the question of the “legitimate

aim” pursued in the cases of the applicants who had not been charged

after being taken to the police station, because no judicial decision

had been taken as to whether an offence had been committed so the

justification for the measure could not be assessed. The Court was

not persuaded that the impugned measures pursued the aim of the

“prevention of disorder”, pointing out that the burden of proof was on

the Government (Perinçek

v. Switzerland

219

). It also had some doubt as to

216.

217.

218.

219.

See under

Article 6 (Right to a fair hearing in civil proceedings)

above.

Novikova and Others v. Russia,

nos. 25501/07 and 4 others, 26 April 2016.

Tatár and Fáber v. Hungary,

nos. 26005/08 and 26160/08, 12 June 2012.

Perinçek v. Switzerland

[GC], no. 27510/08, ECHR 2015 (extracts).

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whether any legitimate aim, among those provided for by Article 10 § 2

permitting restrictions on freedom of expression, had been pursued by

the measures in question and it was only with some reservation that it

took into consideration the “prevention of crime”.

The Court also clarified the notion of “assembly” within the meaning

of Article 11 of the Convention and its position concerning the

requirement of prior notice in the event of a public demonstration by

one or two people involving some interaction with passers-by.

***

The

Shahanov and Palfreeman v. Bulgaria

220

judgment concerned

disciplinary punishments imposed on prisoners who had complained in

writing of misconduct by prison officers.

The applicants alleged that disciplinary punishments imposed on

them by the prison authorities in response to written complaints they

had made, through the proper channels, regarding misconduct on the

part of prison officers had unjustifiably interfered with the exercise of

their right to freedom of expression.

In studying the proportionality of the interference, the Court

reiterated its earlier case-law to the effect that in the context of prison

discipline, regard must be had to the particular vulnerability of persons

in custody, which means that the authorities must provide particularly

solid justification when punishing prisoners for making allegedly false

accusations against the prison authorities (see

Marin Kostov v. Bulgaria,

cited above

221

, with further references).

In finding that the applicants’ Article 10 rights had been violated, the

Court had regard to the following considerations: while the allegations

were quite serious, the language used was not strong, vexatious or

immoderate; the statements had not been made publicly; and the

statements were made by the applicants in the exercise of the possibility

in a democratic society governed by the rule of law for a private person

to report an alleged irregularity in the conduct of a public official to

an authority competent to deal with such an issue. On that last point,

the judgment is of interest in that the Court noted that the possibility

to report alleged irregularities and to make complaints against public

officials takes on an added importance in the case of persons under the

control of the authorities, such as prisoners. For the Court, prisoners

should be able to avail themselves of that opportunity without having

to fear that they will suffer negative consequences for doing so (see

220.

Shahanov and Palfreeman v. Bulgaria,

nos. 35365/12 and 69125/12, 21 July 2016.

221.

Marin Kostov v. Bulgaria,

no. 13801/07, § 44, 24 July 2012.

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Marin Kostov,

§ 47). It placed emphasis on the fact that the courts which

heard the applicants’ appeals did not touch upon, let alone substantively

discuss, the question whether the disciplinary punishments interfered

with the applicants’ right to freedom of expression and, in this respect,

the right to make complaints.

Freedom of the press

One of the issues in the

Bédat v. Switzerland

222

judgment concerned

the balancing of a journalist’s interest in publishing against the com-

peting (private and public) interests protected by the secrecy of

criminal investigations.

The applicant, who was a journalist, was convicted and fined for

publishing information obtained by a third party and passed to the

applicant that was covered by the secrecy of criminal investigations

in pending proceedings. His domestic appeals were unsuccessful. The

Grand Chamber found no violation of Article 10 of the Convention.

(i) Whether an applicant is the journalist or the victim of impugned

press coverage, the Court has consistently accorded equal respect

to the competing Article 10 rights (the right to inform the public and

the public’s right to be informed) and Article 8 rights (private life),

and it has applied the same margin of appreciation to the relevant

balancing exercise.

For the first time, the Court stated that the same approach is to be

applied in cases, such as the present one, where the Article 10 rights of an

applicant journalist are to be balanced against the competing Article 6

rights of the accused (including the right to an impartial tribunal and

to be presumed innocent) in the pending criminal proceedings about

which information, covered by the secrecy of criminal investigations,

had been disclosed.

(ii) The judgment also notes several additional and parallel public

interests, also served by the secrecy of criminal investigations, to be

taken into account in the overall balancing exercise: the confidence of

the public in the role of the courts in the administration of justice and

maintaining “the authority and impartiality of the judiciary” including its

decision-forming and decision-making processes; the effectiveness of

criminal investigations; and the administration of justice (avoiding, for

example, witness collusion and evidence being tampered with).

222.

Bédat v. Switzerland

[GC], no. 56925/08, ECHR 2016.

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(iii) Just as it did in the cases of

Axel Springer AG v. Germany

223

and

Stoll v. Switzerland

224

, the Court listed the criteria to be applied when

carrying out this balancing exercise between Article 10, on the one

hand, and the public and private interests protected by the principle of

the secrecy of criminal investigations, on the other. Those criteria were

drawn from the Court’s jurisprudence and from the legislation of thirty

Contracting States surveyed (for the purposes of the present case) and

they were as follows: how the applicant journalist came into possession

of the secret documents; the content of the impugned article; the

contribution of the article to a public debate; the influence of the article

on the criminal proceedings; any infringement of an accused’s private

life; and the proportionality of the penalty imposed.

(iv) In commenting on the fourth criterion, the Court found that the

article was clearly slanted against the accused. It is interesting to note that

the Court considered that, published as it was during the investigation,

the article risked influencing the outcome of the proceedings including

the work of the investigating judges and of the trial court, irrespective of

the composition of that court (professional judges or not).

Moreover, the Court went on to make clear that the Government did

not have to prove

ex post facto

actual influence on the proceedings: rather

the risk of such influence could justify

per se

the adoption of protective

measures such as rules preserving the secrecy of investigations. The

Court concluded by approving the Federal Court’s view that secret

case-file elements had been discussed in the public sphere during the

investigation and before the trial, out of context and in a manner liable

to influence the investigating and trial judges.

***

The

Ziembiński v. Poland (no. 2)

225

judgment concerned a journalist’s use

of satire and irony when commenting on a matter of public interest.

The applicant, a journalist, published a satirical article in which he

mocked the district mayor and two of his officials for their endorsement

of a quail-farming project intended to tackle local unemployment. He

referred to the district mayor and one official (without using their names)

as “dull bosses”. He characterised another official as “a numbskull”, “a dim-

witted official” and “a poser”. The mayor and the two officials brought

private prosecution proceedings and the applicant was ultimately

223.

Axel Springer AG v. Germany

[GC], no. 39954/08, 7 February 2012.

224.

Stoll v. Switzerland

[GC], no. 69698/01, ECHR 2007-V.

225.

Ziembiński v. Poland (no. 2),

no. 1799/07, 5 July 2016.

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convicted of the offence of insult. The domestic courts found that the

applicant had exceeded the limits of fair criticism and had resorted to

language which was disrespectful and offensive and harmful to the

claimants’ human dignity.

The applicant contended that there had been a violation of

Article 10. The Court agreed with him. Its judgment is of interest for the

following reasons.

In the first place, the judgment afforded the Court another

opportunity to observe that satire is a form of artistic expression and

social commentary which, by its inherent features of exaggeration and

distortion of reality, naturally aims to provoke and agitate. Accordingly,

any interference with the right to use this means of expression should

be examined with particular care (see

Vereinigung Bildender Künstler

v. Austria

226

;

Alves da Silva v. Portugal

227

; and

Eon v. France

228

). It noted

that the domestic courts had not taken sufficient account of the

satirical nature of the text and the underlying irony when analysing the

applicant’s article (see

Sokołowski v. Poland

229

Secondly, it is interesting to observe that the Court did not dwell

on each specific term used by the applicant in order to determine its

acceptability. It had no doubt that the applicant’s remarks, as used in the

article, remained within the limits of acceptable exaggeration.

Thirdly, the judgment illustrates the importance of the context in

which words are used. The instant case concerns press freedom and

recourse to satire to impugn the conduct of elected or public officials.

The case can be distinguished from that in

Janowski v. Poland

230

in which

the Court found no breach of Article 10. In

Janowski,

the applicant was

convicted of insulting municipal guards by calling them “oafs” and

“dumb” during an incident which took place in a square in the presence

of members of the public. The need to protect the interests of the

municipal guards did not have to be weighed in relation to the interests

of the freedom of the press or of open discussion of matters of public

concern since the applicant’s remarks were not uttered in such a context.

226.

227.

228.

229.

230.

Vereinigung Bildender Künstler v. Austria,

no. 68354/01, § 33, 25 January 2007.

Alves da Silva v. Portugal,

no. 41665/07, § 27, 20 October 2009.

Eon v. France,

no. 26118/10, § 60, 14 March 2013.

Sokołowski v. Poland,

no. 75955/01, § 46

in fine,

29 March 2005.

Janowski v. Poland

[GC], no. 25716/94, ECHR 1999-I.

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Freedom to receive and impart information

The judgment in

Magyar Helsinki Bizottság v. Hungary

231

raised the issue

of the extent to which Article 10 guarantees a right of access to State-

held information.

The applicant NGO requested access to police-department files

containing information on the appointment and names of public

defenders, in order to complete a survey in support of proposals for the

reform of the public defenders’ scheme. While most police departments

complied, two did not and the ensuing domestic proceedings by the

NGO for access to those files were unsuccessful. The applicant NGO

complained that that denial of access was a violation of its rights

guaranteed by Article 10 of the Convention.

(i) This judgment is noteworthy for its detailed review and clarifi-

cation of the Court’s case-law on the extent to which Article 10

guarantees a right of access to State-held information. While the Court

did not recognise a separate right of access as such, it clarified the

Leander v. Sweden

232

principles accepting that, in certain circumstances,

such a right could be drawn from the right to freedom of expression and

it set out the criteria by which this assessment could be made on a case-

by-case basis.

In particular, the “standard jurisprudential position”, set out in

Leander

and confirmed in,

inter alia,

Guerra and Others v. Italy

233

Gaskin v. the

United Kingdom

234

and

Roche

235

, cited above, was that Article 10 neither

conferred a right of access to State-held information nor embodied a

corresponding obligation on the authorities to provide it. That did not,

the Grand Chamber found, exclude the existence of such a right or

obligation in other circumstances. That was already the case in cases

such as

Gillberg v. Sweden

236

, where one arm of State had recognised a

right to receive information but another arm had frustrated or failed to

give effect to that right.

The Grand Chamber therefore examined whether a right of access

could be gleaned from Article 10 in the present set of circumstances.

To so do it reviewed the

travaux préparatoires

concerning Article 10

and the opinions of the Court and Commission on draft Protocol No. 6,

which allowed it to find that there might be weighty arguments in

231.

232.

233.

234.

235.

236.

Magyar Helsinki Bizottság v. Hungary

[GC], no. 18030/11, ECHR 2016.

Leander v. Sweden,

26 March 1987, Series A no. 116.

Guerra and Others v. Italy,

19 February 1998,

Reports of Judgments and Decisions

1998-I.

Gaskin v. the United Kingdom,

7 July 1989, Series A no. 160.

Roche v. the United Kingdom

[GC], no. 32555/96, ECHR 2005-X.

Gillberg v. Sweden

[GC], no. 41723/06, 3 April 2012.

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favour of reading into Article 10 an individual right of access to State-

held information and a corresponding obligation on the State to

provide it. The comparative review of thirty-one Contracting States,

the emerging consensus at the international level, the

EU Charter of

Fundamental Rights

and other EU provisions as well as various Council

of Europe instruments, also led the Grand Chamber to find that there

was now a “broad consensus, in Europe (and beyond), on the need to

recognise an individual right of access to State-held information in

order to assist the public in forming an opinion on matters of general

interest” (paragraph 148 of the judgment). The Court was not therefore

“prevented from interpreting Article 10 § 1 … as including a right of

access to information”.

Having regard to the Court’s case-law (which had evolved in favour

of the recognition, under certain conditions, of a right to freedom of

information, not as a separate right, but as an inherent element of the

freedom to receive and impart information enshrined in Article 10), as

well as to the European and international trends noted above, the Court

considered that the time had come to clarify the

Leander

principles.

The Grand Chamber did so as follows. A right of access to State-held

information and the corresponding obligation might arise, firstly, where

disclosure of the information had been imposed by judicial order (as had

happened in

Gillberg,

although not in the instant case) and, secondly,

where “access to the information is instrumental for the individual’s

exercise of his or her right to freedom of expression and, in particular

‘the freedom to receive and impart information’ and where its denial

constitutes an interference with that right” (this situation was relevant

to the instant case).

The Grand Chamber then set down the criteria to be applied to

determine, on a case-by-case basis, whether a particular denial of access

would amount to an interference with freedom of expression rights: the

purpose of the information requested; the nature of the information

sought; the role of the applicant; and whether the information was

ready and available. Applying those criteria, the Grand Chamber found

that the failure to provide the information sought by the applicant NGO

constituted an interference with its rights protected by Article 10 of

the Convention.

(ii) In determining whether that interference had been necessary in

a democratic society, the Grand Chamber was required to balance the

applicant NGO’s expression rights against the protection to be accorded

to the data sought by it.

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The Grand Chamber found (having referred to the Council of

Europe’s

Data Protection Convention

237

and the Court’s case-law) that

the Article 8 interests invoked were “not of such a nature and degree” as

could warrant bringing Article 8 into play in the balancing exercise. In

so finding, it had regard to the context (the data related to the conduct

of professional activities in public proceedings did not concern the

substance of that work and did not, therefore, affect their private lives)

and to the fact that disclosure of this information could be considered to

have been foreseeable.

Although Article 8 did not therefore come into play, the protection

of the data remained a legitimate aim permitting only a proportionate

restriction on expression. Finding that the public interest involved

outweighed the need to protect data “not outside the public domain”,

the Grand Chamber concluded that there had been a violation of

Article 10 of the Convention.

***

The

Kalda v. Estonia

238

judgment concerned restrictions placed on

the applicant prisoner’s access to certain Internet sites containing

legal information.

The applicant, a prisoner, complained that he was refused access

to several Internet sites and was thereby prevented from carrying out

legal research. The sites included the website of the local information

office of the Council of Europe and certain, but not all, State-run

databases containing legislation and judicial decisions. In the appeal

proceedings brought by the applicant, the Supreme Court concluded

that granting access to Internet sites beyond those authorised by the

prison authorities could increase the risk of prisoners engaging in

prohibited communication, thus giving rise to a need for increased

levels of monitoring of their use of computers.

The applicant relied on Article 10 of the Convention. The Court

agreed with him that the prohibition on access to the sites in question

interfered with his right to receive information which was freely available

in the public domain. On that particular point, it is interesting to observe

that the Court viewed the interference not in terms of the authorities’

refusal to release the information requested by the applicant, but in

terms of a prohibition on granting him access by means of the Internet

237. Convention for the Protection of Individuals with regard to Automatic Processing of

Personal Data, ETS No. 108.

238.

Kalda v. Estonia,

no. 17429/10, 19 January 2016.

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to information which others were willing to communicate, including the

State via its official legal-information websites.

It reiterated in this connection that the Internet played an important

role in enhancing the dissemination of information in general (see in

this connection,

Delfi AS v. Estonia

239

, and

Ahmet Yıldırım v. Turkey

240

)

and, of relevance to prisoners, that an increasing amount of services

and information is only available on the Internet. This included the

Court’s judgments and translations of them into the official languages of

Contracting States including, as regards the applicant, in Estonian.

That said, it is noteworthy that the Court stressed that Article 10

cannot be interpreted as imposing a general obligation on States to

provide access to the Internet, or to specific Internet sites, for prisoners.

The facts of the particular case submitted to its examination would

appear to be decisive in this connection.

In the instant case, in finding that the State had breached the

applicant’s right under Article 10 of the Convention, the Court laid

emphasis on the fact that the law of the respondent State did not

prevent prisoners from having access to all legal-information sites. As

to the sites to which access was denied, it observed that they essentially

stored information relating to fundamental rights, including the rights

of prisoners. Such information was used by the courts of the respondent

State and was of relevance to the applicant when it came to asserting

and defending his rights before the domestic courts. It is of interest

that the Court gave prominence to the fact that, when the applicant

lodged his complaint with the domestic courts, translations of the

Court’s judgments against the respondent State into Estonian were only

available on the website of the local Council of Europe Office, to which

he was denied access.

The Court had to address the Government’s argument that there

were security and cost implications in allowing prisoners extended

access to Internet sites of the type denied to the applicant. Its response

was that their authorities had already made security arrangements for

the use of the Internet by prisoners and had borne the related costs. In

examining the applicant’s case, it found that the domestic courts had

not given due consideration to any possible security risks attendant on

the applicant’s use of the websites, bearing in mind that they were run

by the Council of Europe and by the State itself. The reasons given by the

domestic courts, albeit relevant, were not sufficient for the purposes of

the second paragraph of Article 10.

239.

Delfi AS v. Estonia

[GC], no. 64569/09, § 133, ECHR 2015.

240.

Ahmet Yıldırım v. Turkey,

no. 3111/10, § 48, ECHR 2012.

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The judgment is noteworthy in that the Court, while affirming that

Contracting States are not obliged to grant prisoners access to the

Internet, may be in breach of Article 10 of the Convention where they are

willing to allow prisoners access to the Internet, but not to specific sites.

It would appear from the judgment that it is for the domestic courts to

provide relevant and sufficient reasons for any restrictions imposed on

access to such sites, having regard to their nature and purpose.

***

The judgment in

Pinto Coelho v. Portugal (no. 2)

241

concerned the

unauthorised broadcasting of a report containing audio extracts from

a court recording of a hearing. In the retransmission, the voices of the

three judges sitting on the bench and of the witnesses were digitally

altered. These extracts were followed by comments by the applicant, a

journalist specialising in court cases, referring to a miscarriage of justice.

Following the broadcast, the president of the chamber which had tried

the case submitted a complaint to the prosecutor’s office. The persons

whose voices had been broadcast did not, however, complain to the

courts of an infringement of their right to be heard. The applicant was

convicted of breaching the statutory prohibition on broadcasting audio-

recordings of a hearing without permission from the court and ordered

to pay a fine.

The applicant complained of a breach of her right to freedom

of expression.

The interest of the case lies in the fact that it pitches competing

interests against each other: on the one hand, the rights of the press to

inform the public and of the public to be informed and, on the other, the

right of trial witnesses to be heard and the need to ensure the proper

administration of justice.

The Court had regard to the determination of the superior courts of

the member States of the Council of Europe to respond forcefully to the

harmful pressure the media could put on civil parties and defendants

and which was liable to undermine the presumption of innocence.

Nevertheless, a number of factors swayed the balance in favour of

finding a violation of Article 10 of the Convention.

(i) The trial was already over when the report was broadcast.

(ii) The hearing had been public and none of those concerned had

used the remedy available to them for an infringement of their right to

be heard. For the Court, the onus had primarily been on them to ensure

respect for that right.

241.

Pinto Coelho v. Portugal (no. 2),

no. 48718/11, 22 March 2016.

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(iii) Additionally, the voices of those taking part in the hearing had

been distorted to prevent them from being identified. In this connection,

it is noteworthy that the Court found that Article 10 § 2 of the Convention

did not provide for restrictions on freedom of expression based on the

right to be heard, as that right was not afforded the same protection as

the right to reputation. It was unclear why the right to be heard ought to

prevent the broadcasting of sound clips from a hearing held in public. In

sum, the Government had not given sufficient reasons to justify the fine

imposed on the applicant.

***

The

Brambilla and Others v. Italy

242

judgment concerned the conviction

of journalists following their interception of confidential police

radio communications.

With a view to arriving speedily at crime scenes the applicants, all

journalists, intercepted police radio communications. Reaching a crime

scene quickly meant that they could file promptly their reports on the

incident with the local newspaper which employed them. They were

eventually convicted of a criminal offence since domestic law treated

such communications as confidential. They received prison sentences of

one year and three months (first two applicants) and six months (third

applicant), which were later suspended.

The Court did not accept their submission that there had been a

breach of their right to impart information to the public, as guaranteed

by Article 10 of the Convention.

The following points may be highlighted.

In the first place, the Court left open the question whether Article 10

applied on the facts of the case. It preferred to assume applicability of

Article 10 and concentrated on the necessity of the interference.

Secondly, it applied to the applicants’ case the principles which the

Grand Chamber recently set out in

Pentikäinen v. Finland

243

, namely:

“In particular, and notwithstanding the vital role played by the

media in a democratic society, journalists cannot, in principle,

be released from their duty to obey the ordinary criminal law on

the basis that, as journalists, Article 10 affords them a cast-iron

defence (see, among other authorities,

mutatis mutandis, Stoll

[v.

Switzerland

[GC], no. 69698/01], § 102[, ECHR 2007-V]; Bladet

Tromsø and Stensaas [v.

Norway

[GC], no. 21980/93], § 65 [, ECHR

1999-III]; and

Monnat v. Switzerland,

no. 73604/01, § 66, ECHR

242.

Brambilla and Others v. Italy,

no. 22567/09, 23 June 2016.

243.

Pentikäinen v. Finland

[GC], no. 11882/10, §§ 91 and 110, ECHR 2015.

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2006-X). In other words, a journalist cannot claim an exclusive

immunity from criminal liability for the sole reason that, unlike

other individuals exercising the right to freedom of expression,

the offence in question was committed during the performance

of his or her journalistic functions.”

and

“ …, it has to be emphasised that the concept of responsible

journalism requires that whenever a journalist – as well as his

or her employer – has to make a choice between the two duties

and if he or she makes this choice to the detriment of the duty

to abide by ordinary criminal law, such journalist has to be aware

that he or she runs the risk of being subject to legal sanctions,

including those of a criminal character, by not obeying the lawful

orders of,

inter alia,

the police.”

With those principles in mind, the Court found that the applicants

had not been sanctioned for publishing scene-of-crime reports in their

newspaper nor for imparting information on crime to the public. They

had breached the law by being in possession of and using a device to

listen in to communications deemed to be confidential under Italian

law and justified by the domestic courts with reference to, among other

things, the prevention of crime. As to the severity of the sentences

imposed, it observed that they had been suspended.

This is the third case in which the Court has of late applied the

Pentikäinen

principles to a situation in which applicant journalists have

sought to justify their breach of domestic criminal-law provisions with

reference to the pursuit of their journalistic activities (see

Erdtmann

v. Germany

244

, and

Salihu and Others v. Sweden

245

). It is of interest that

this is the first case in which the Court has left open the applicability of

Article 10.

Freedom of assembly and association (Article 11)

Freedom of peaceful assembly

246

The

Frumkin v. Russia

247

judgment related to the State authorities’ positive

obligation to communicate with the leaders of a protest demonstration

in order to ensure its peaceful conduct.

244.

Erdtmann v. Germany

(dec.), no. 56328/10, 5 January 2016.

245.

Salihu and Others v. Sweden

(dec.), no. 33628/15, 10 May 2016.

246. See also under

Article 10

above,

Novikova and Others v. Russia,

nos. 25501/07 and

57569/11, 26 April 2011.

247.

Frumkin v. Russia,

no. 74568/12, ECHR 2016.

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The applicant was arrested during the dispersal of a political rally in

Moscow. He was detained for a period of thirty-six hours and eventually

sentenced to fifteen days’ administrative detention for obstructing traffic

and disobeying police orders to refrain from doing so. In the Convention

proceedings, he alleged among other things a breach of Article 11. The

Court found for the applicant.

The judgment is noteworthy in that the Court had regard to the

broader context in which the demonstration had been planned and in

particular to the manner in which the police, during a stand-off with

demonstrators which subsequently degenerated into violence, had

responded to the wishes of the organisers to be authorised to hold the

rally at what they believed to be a venue previously approved by the

authorities. Using a cordon, the police sought to prevent the protestors

from proceeding to the venue and tried to redirect them to an adjacent

area. It was a matter of dispute between the parties as to whether

approval had been given for the venue. The Court found on the facts

that tacit, if not express, agreement had been given.

It is of interest that the Court examined the policing of the

demonstration and the decision to disperse it from the standpoint of

the authorities’ duty to communicate with the leaders of the assembly,

which it considered to be an essential aspect of their positive obligation

under Article 11 of the Convention to ensure the peaceful conduct of the

assembly, to prevent disorder and to secure the safety of all involved. A

number of points may be highlighted in this connection.

(i) As to the authorities’ fear that the protestors would set up a

campsite on the venue, which justified the decision to deny them access

to it, the Court observed that, although Article 11 did not guarantee a

right to set up a campsite at a location of one’s choice, such temporary

installations may in certain circumstances constitute a form of political

expression, restrictions on which must comply with the requirements of

the second paragraph of Article 10.

(ii) Whatever course of action the police deemed correct, it was

incumbent on them to engage with the leaders in order to communicate

their position openly, clearly and promptly.

(iii) The police authorities had not provided for a reliable channel of

communication with the organisers before the rally and had failed to

respond to developments in a constructive manner and to resolve the

tension caused by the confusion over the venue.

(iv) The failure to take simple and obvious steps at the first signs of

conflict had allowed it to escalate, leading to the disruption of what had

previously been a peaceful assembly and ultimately its dispersal.

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The Court went on to find a further breach of Article 11 having regard

to the absence of any pressing social need which would have justified

the applicant’s arrest and detention, and certainly not his imprisonment.

***

The

Gülcü v. Turkey

248

judgment concerned the compatibility with

Article 11 of the Convention of the sentence imposed on a minor for

participating in an illegal demonstration and engaging in acts of

violence against police officers.

The applicant, who was fifteen at the time, was remanded in

custody and subsequently convicted of membership of a proscribed

organisation, promoting the aims of that organisation and resisting

the police. The charges arose out of his participation in an illegal

demonstration during which he had thrown stones at members of the

security forces. The applicant, who had spent three months and twenty

days in custody before being convicted, was given a prison sentence of

seven years and five months in respect of all of the charges. He served

part of that sentence before being released. In all, he was deprived of his

liberty for a period of almost two years.

The Court examined the applicant’s arguments from the standpoint

of an alleged interference with his right to freedom of assembly, as

guaranteed by Article 11 of the Convention. It found that the Convention

had been breached. The judgment is of interest for the following reasons.

In the first place, the Court noted that, even if the applicant had

been convicted of an act of violence against police officers, there was

nothing to suggest that when joining the demonstration he had had

any violent intentions; nor had the organisers of the demonstration

intended anything other than a peaceful assembly. On that account,

and notwithstanding his acts of violence directed at the police officers

present at the demonstration, the applicant could rely on Article 11 of

the Convention.

Secondly, the Court took issue with the domestic court’s finding

that the applicant’s participation in the illegal demonstration was

proof of his membership of the proscribed organisation and of his

intention to disseminate propaganda in support of it. It observed that

the domestic court had failed to provide relevant and sufficient reasons

for these conclusions, in breach of the procedural safeguards inherent

in Article 11.

Thirdly, the Court noted the extreme severity of the penalty imposed.

The applicant was fifteen years old at the time of the incident. However,

248.

Gülcü v. Turkey,

no. 17526/10, 19 January 2016.

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the domestic courts failed to have regard to his young age both when

remanding him in custody and when passing sentence. It is interesting

to observe that the Court had regard in this connection to Article 37 of

the

UN Convention on the Rights of the Child

and

General Comment

No. 10 (2007),

according to which the arrest, detention or imprisonment

of a child can be used only as a measure of last resort and for the shortest

appropriate period of time.

As to the part of the sentence imposed for the stone-throwing

incident (two years, nine months and ten days), the Court could accept

that the authorities enjoyed a wider margin of appreciation when

examining the need for an interference with the Article 11 rights of those

involved in such reprehensible acts. However, given the applicant’s age

the punishment could not be considered proportionate to the legitimate

aims pursued.

Freedom of association

Cumhuriyet Halk Partisi

249

, cited above, concerned the issue of the

compatibility of the imposition of financial sanctions on a political

party on account of irregularities in its expenditure discovered during

inspection of its accounts.

The applicant, the main opposition party in Turkey, complained in

the Convention proceedings that the Constitutional Court had ordered

the confiscation of a substantial part of its assets following an inspection

of its accounts which, according to the court’s findings, revealed that

over the course of a number of financial years the applicant party had

incurred expenses which could not be considered lawful expenditure

in terms of the “objectives of a political party”. The amount covered

by the confiscation orders represented the amount deemed to be

unlawful expenditure. The applicant party’s case was essentially based

on the authorities’ alleged failure to provide at the relevant time for

a clear, foreseeable and predictable basis in law making it possible,

firstly, to determine in advance the kinds of expenditure which fell

within the scope of “unlawful expenditure” and, secondly, to anticipate

the circumstances in which the Constitutional Court in response to an

identified financial irregularity would have recourse to the making of a

confiscation order rather than issuing a warning.

The Court agreed with the applicant party. The interference had not

been “prescribed by law” and Article 11 of the Convention had thereby

been breached. The judgment is noteworthy for a number of reasons.

249.

Cumhuriyet Halk Partisi v. Turkey,

no. 19920/13, ECHR 2016.

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In the first place, the Court observed that requiring political parties

to subject their finances to official inspection does not of itself raise an

issue under Article 11. Such requirement serves the goals of transparency

and accountability, thus ensuring public confidence in the political

process. Member States enjoy a relatively wide margin of appreciation

when it comes to the supervision of the finances of political parties and

the choice of sanctions to be imposed in the event of the discovery of

irregular financial transactions.

Secondly, the Court noted that the confiscation orders obliged the

applicant party to curtail a significant number of its political activities,

including at local branch level. There had therefore been an interference

with its right to freedom of association, political parties being a form of

association essential to the proper functioning of democracy.

Thirdly, before examining compliance with the “prescribed by law”

component of Article 11, the Court underscored that the financial

inspection of political parties should never be used as a political tool to

exercise political control over them, especially on the pretext that the

political party (like the applicant party) is publicly financed. It continued

(paragraph 88 of the judgment):

“In order to prevent the abuse of the financial-inspection

mechanism for political purposes, a high standard of ‘foreseeability’

must be applied with regard to laws that govern the inspection

of the finances of political parties, in terms of both the specific

requirements imposed and the sanctions that the breach of those

requirements entails.”

Fourthly, the Court returned to this issue in its concluding remarks on

the case. It accepted that the broad spectrum of activities undertaken

by political parties in modern societies made it difficult to provide for

comprehensive criteria to determine those activities which may be

considered to be in line with the objectives of a political party and

which relate genuinely to party work. However, in paragraph 106 of the

judgment it stressed that, having regard to the important role played by

political parties in democratic societies

“any legal regulations which may have the effect of interfering

with their freedom of association, such as the inspection of

their expenditure, must be couched in terms that provide a

reasonable indication as to how those provisions will be interpreted

and applied”.

On the facts of the applicant party’s case, the Court found that the

relevant legal provisions in force at the time lacked precision as regards

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the scope of the notion of unlawful expenditure. The decisions of the

Constitutional Court had failed to bring clarity to the matter, resulting

in an inconsistent and unpredictable interpretation and application

of the applicable law to the detriment of the applicant party’s need to

be able to regulate its expenditure in order to avoid falling foul of the

law. The lack of foreseeability was also compounded by the absence of

guidance on whether and when an item of unlawful expenditure would

be sanctioned by means of a warning or a confiscation order.

***

Geotech Kancev Gmbh v. Germany

250

concerned the alleged breach of

the applicant company’s right not to be forced to join an association

(negative right to freedom of association).

The applicant company was engaged in the building industry. It

objected to having to pay additional contributions to the Social Welfare

Fund established in that sector. Such obligation was based on the fact

that a collective agreement concluded between the relevant employers’

associations and the trade union was declared by the Federal Ministry

for Labour and Social Affairs to be of general application in the building

industry, which meant that all employers in the industry, even if they

were not members of an employer’s association, were required to make

additional contributions to the Fund. The applicant company is not a

member of an employers’ association, and therefore did not take part

in the negotiation of the collective agreement, and does not wish to

join one.

In the Convention proceedings, the applicant company complained

that the obligation to participate financially in the Fund violated its right

to freedom of association, essentially because, not being a member of

an employers’ association, it had no say in the running of the Fund and

no means to protect its own interests. In its view, these factors put it

under pressure to join an employers’ association so as to enable it to

defend its interests.

The Court examined the applicant company’s complaint from the

standpoint of the negative aspect of the right to freedom of association,

namely the right not to be forced to join an association. Its inquiry was

directed at establishing whether the circumstances of the case were

such as to constitute an interference with the applicant company’s

Article 11 right and in particular whether the alleged pressure to become

a member of an employers’ association could be said to have struck at

the very substance of that right.

250.

Geotech Kancev GmbH v. Germany,

no. 23646/09, 2 June 2016.

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The Court ruled against the applicant company. The judgment is of

interest in that it was required to distinguish the facts of the applicant

company’s case from those in previous cases in which it found that an

obligation to contribute financially to an association can resemble an

important feature in common with that of joining an association and

can constitute an interference with the negative aspect of the right to

freedom of association (see, in particular,

Vörður Ólafsson v. Iceland

251

The Court highlighted the following points which undermined

the applicant company’s view that the scheme was tantamount to

compulsory membership of an employers’ association. In so doing it

had close regard to the social purpose underpinning the creation of

the scheme.

In the first place, the applicant company’s contributions to the

Fund could only be used to implement and administer the Fund and

to pay out benefits to employees in the building industry. For that

reason, the contributions which the applicant company was required

to pay could not be considered to be a membership contribution to an

employers’ association.

Secondly, all contributing companies, whether members of an

employers’ association or not, received full information about the

use to which their contributions were put. There was a high level of

transparency surrounding the operation of the Fund.

Thirdly, unlike in the case of

Vörður Ólafsson,

there was a significant

degree of involvement in and control of the scheme by public authorities.

In view of the above considerations, the Court concluded that any

de facto

incentive for the applicant company to join an employers’

association was too remote to strike at the very substance of its

Article 11 right.

The judgment confirms the established case-law regarding the

negative right to freedom of association and the importance of

conducting a fact-specific inquiry into whether or not the facts of a

particular case disclose a violation of Article 11 in cases of alleged

compulsion to join an association.

***

The

Unite the Union v. the United Kingdom

252

decision examined the

question whether a State has a positive obligation to provide for a

mandatory system of collective bargaining.

251.

Vörður Ólafsson v. Iceland,

no. 20161/06, § 48, ECHR 2010.

252.

Unite the Union v. the United Kingdom

(dec.), no. 65397/13, 3 May 2016.

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The applicant trade union represented around 18,000 employees in

the agricultural sector. Following a series of consultations with interested

parties, including the applicant trade union, the British Government

succeeded in having adopted new legal provisions abolishing the

Agricultural Wages Board for England and Wales, a statutory body which

for many years had set minimum wages and conditions in the agricultural

sector. The Board comprised among its members representatives of

employers and employees, the latter being nominated most recently by

the applicant trade union.

In the Convention proceedings, the applicant trade union argued that

the abolition of the Board was contrary to Article 11 of the Convention in

that it infringed its right to engage in collective bargaining in the interests

of its members, that being an essential element of the right to form and

join a trade union. The Court found the complaint to be manifestly ill-

founded. The decision is of interest for the following reasons.

In the first place, the Court noted that the abolition of the Board

did not prevent the applicant trade union from engaging in collective

bargaining. Employers and trade unions were not prevented from

entering into voluntary collective agreements and the enforceability

of such agreements was provided for in domestic law. For that reason

the abolition of the Board could not be seen as an interference with the

applicant trade union’s Article 11 rights.

Secondly, the Government could not be said to have failed to comply

with any possible positive obligation which may be derived from

Article 11 to have in place a mandatory statutory forum for collective

bargaining in the agricultural sector. The respondent State enjoyed

a wide margin of appreciation in determining whether a fair balance

had been struck between the protection of the public interest in the

abolition of the Board and the applicant trade union’s competing rights

under Article 11 of the Convention. It is of interest that the Court had

regard to the

European Social Charter,

the

Charter of Fundamental

Rights of the European Union

and several ILO Conventions concerning

the right to bargain collectively, particularly in the agricultural sector,

in order to show that there did not exist an international consensus in

favour of the applicant trade union’s position.

Thirdly, the Court pointed out the extent of the consultation on the

Government’s proposal to abolish the Board as well as its assessment

of the impact, including financial, of the abolition on workers in the

agricultural sector. It is noteworthy that the Court found that the fact

that the government had considered the human-rights implications of

the proposal, including the extent of their positive obligations in the

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area of collective bargaining, was “a factor which carries some weight

for [its] assessment as to the fair balance to be struck between the

competing interests at stake in the light of the principle of subsidiarity”.

Fourthly, in examining compliance with the fair-balance require-

ment, the Court reiterated that the applicant trade union was not

prevented from negotiating voluntary collective and legally enforceable

agreements. Even accepting its submission that voluntary collective

bargaining in the agricultural sector was virtually non-existent and

impractical, this was not, in the Court’s view, sufficient to lead to the

conclusion that a mandatory mechanism should be recognised as a

positive obligation.

Prohibition of discrimination (Article 14)

253

Article 14 taken in conjunction with Article 8

The judgment in

Biao v. Denmark

254

related to a restriction on family

reunification, which indirectly discriminated against persons such as the

applicant on the grounds of ethnic origin and nationality.

The first applicant, who was born in Togo, lived much of his formative

years in Ghana before entering Denmark in 1993 and acquiring Danish

nationality in 2002. He then married the second applicant in Ghana. A

residence permit, to allow the second applicant to join him in Denmark,

was refused since the applicants’ aggregate ties to Denmark were not

stronger than their attachment to any other country, Ghana in their case

(“the attachment requirement”).

They complained under Article 8 alone, and in conjunction with

Article 14, that a legislative amendment which provided an exception to

the attachment requirement for those who had been Danish nationals

for twenty-eight years (“the twenty-eight-year rule”), resulted in a

discriminatory difference in treatment against those, such as the first

applicant, who had acquired Danish nationality later in life. The Grand

Chamber found a violation of Article 14 in conjunction with Article 8 and

that no separate issue arose under Article 8 of the Convention alone.

(i) The case is noteworthy for the finding that a domestic immigration

measure, regulating family reunification, had an indirect discriminatory

impact in breach of Article 14 on grounds of ethnicity and nationality.

In particular, the question was whether the twenty-eight-year

rule, creating as it did an exception to the attachment requirement,

had disproportionately prejudicial effects on persons such as the first

253. See also under

Article 9

above,

İzzettin Doğan and Others v. Turkey

[GC], no. 62649/10,

ECHR 2016.

254.

Biao v. Denmark

[GC], no. 38590/10, ECHR 2016.

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applicant who had acquired Danish nationality later in life and was of

ethnic origin other than Danish, compared to Danish-born nationals of

Danish ethnic origin, so as to amount to indirect discrimination on the

basis of ethnic origin or nationality in violation of Article 14. In finding a

violation, the Grand Chamber

– confirmed that, while Article 8 does not impose general family-

reunification obligations (Jeunesse

255

, cited above), an immigration-

control measure compatible with Article 8 could amount to

discrimination and a breach of Article 14 (see, for example,

Abdulaziz,

Cabales and Balkandali v. the United Kingdom

256

);

– confirmed that the Court will look behind the text and aim of a

measure and examine whether it has disproportionately prejudicial

effects on a particular group and will find it discriminatory if it has no

“objective and reasonable justification”, even if the policy or measure

was not aimed at that group and even if there was no discriminatory

intent (see, for example,

Hugh Jordan v. the United Kingdom

257

, and

D.H.

and Others v. the Czech Republic

258

);

– identified that the relevant comparator in the applicants’ case

was “Danish nationals of Danish ethnic origin” and reiterated that no

difference in treatment based exclusively or to a decisive extent on a

person’s ethnic origin was capable of being justified in a contemporary

society and that a difference of treatment based on nationality was only

allowed for “compelling or very weighty reasons”; and

– concluded that the Government had failed to show that there were

such “compelling or very weighty reasons unrelated to ethnic origin to

justify the indirect discriminatory effect of the twenty-eight-year rule”.

(ii) It is not clear whether this judgment has any impact on the Court’s

finding in 1985 in

Abdulaziz, Cabales and Balkandali.

While the Grand

Chamber did note that the majority of the Danish Supreme Court had

relied on

Abdulaziz, Cabales and Balkandali,

it clarified that the Supreme

Court had assessed this case as a difference of treatment based on length

of citizenship whereas this Court assessed it as an indirect discrimination

based on nationality and ethnic origin, so that the Grand Chamber’s

proportionality test was stricter than that applied by the Supreme Court.

Hence the Grand Chamber appears to have distinguished the

Abdulaziz,

Cabales and Balkandali

case from the present one.

255.

Jeunesse v. the Netherlands

[GC], no. 12738/10, § 107, 3 October 2014.

256.

Abdulaziz, Cabales and Balkandali v. the United Kingdom,

28 May 1985, §§ 70-80, Series A

no. 94.

257.

Hugh Jordan v. the United Kingdom,

no. 24746/94, § 154, 4 May 2001.

258.

D.H. and Others v. the Czech Republic

[GC], no. 57325/00, §§ 175 and 184-85, ECHR 2007-IV.

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(iii) It is also worth noting that the Court gathered information on,

and took into account, other international trends and views. In assessing

justification for the twenty-eight-year rule, the Grand Chamber referred

to Article 5 § 2 of the

European Convention on Nationality

of the Council

of Europe (ETS No. 166), a declaration of intent to eliminate discrimination

between those who are nationals at birth and other nationals (including

naturalised). The Court considered it demonstrated a trend towards a

European standard which was relevant for the present case. The relevant

EU provisions and case-law on family reunification also indicated that no

distinction should be made between those who acquired citizenship by

birth or otherwise. Moreover, the Grand Chamber judgment reflects the

fact that various independent bodies had specifically condemned the

twenty-eight-year rule: the European Commission against Racism and

Intolerance (Council of Europe), the Committee on the Elimination of

Racial Discrimination (United Nations) and the Commissioner for Human

Rights (Council of Europe). The Court’s own comparative law survey

(covering twenty-nine member States) on the basic requirements for

family reunification of nationals with third-country nationals indicated

that none of those States distinguished between different groups of

their own nationals in laying down conditions for family reunification.

***

The

Di Trizio v. Switzerland

259

judgment concerned social allowances and

their relevance for family and private life.

Before giving birth to twins, the applicant had been forced to give up

her full-time job on account of back problems and was thereby entitled

to an invalidity allowance. Following the birth, she informed the relevant

authorities that she wished to go back to work on a part-time basis for

financial reasons. The applicant expected that the amount of invalidity

allowance she received would be reduced by 50%. However, she did not

receive an allowance at all. In their assessment the authorities relied on

the applicant’s declaration that she only wanted to work part-time. The

special method used to assess the applicant’s entitlement, which was

only applied in cases of individuals engaged in part-time work, resulted

in a decision to refuse the applicant any allowance since she did not

satisfy the minimum 40% level of disability.

In the Convention proceedings, the applicant complained that the

special method of assessment applied to her case by the domestic

authorities discriminated against her in the enjoyment of her right to

respect for her private and family life. She maintained that, even if the

259.

Di Trizio v. Switzerland,

no. 7186/09, 2 February 2016.

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same method of calculation was applied to both men and women, it

operated to the disadvantage of women since it overlooked the fact

that in the vast majority of cases women, rather than men, often worked

part-time after the birth of children. In other words, the method was

based on the view that the male member of a couple went out to work

while the female member looked after the house and children.

The judgment is of interest in that the Court had first to decide

whether the facts of the case fell within the ambit of family and private

life (Switzerland not having ratified Protocol No. 1). It concluded that

they did.

As to family life, it noted that the application of the method of

calculation criticised by the applicant was capable of having an impact

on the manner in which she and her husband organised their family and

working life and divided up their time within the family.

As to private life, the Court observed that Article 8 guaranteed

the right to personal autonomy and development. Given that the

method used to calculate entitlement to an invalidity allowance placed

individuals wishing to work part-time at a disadvantage, it could not be

excluded that its application restricted such individuals in their choice of

the means to reconcile their private life with work, household duties and

bringing up children.

Article 14 of the Convention was therefore applicable.

As to the merits, the Court found for the applicant: the method of

calculation indirectly discriminated against women since it was almost

exclusively women who were affected by it (in 97% of cases) and the

Government had failed to adduce any reasonable justification for the

difference in treatment. It observed that the applicant would likely have

obtained an allowance had she declared to the authorities that it was

her intention to work full-time or not to work at all.

***

The

Pajić v. Croatia

260

judgment concerned the recognition of a homo-

sexual couple in an immigration context.

The applicant, a national of Bosnia and Herzegovina, was in a stable

same-sex relationship with a woman living in Croatia. They travelled

regularly to see each other. After two years the applicant lodged a

request with the Croatian authorities for a residence permit with a

view to family reunification. She stated that she had lived in Croatia

for a number of years and had been in a relationship with her Croatian

partner, with whom she wanted to establish a household and start

260.

Pajić v. Croatia,

no. 68453/13, 23 February 2016.

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a business. In a decision that was upheld by the Croatian courts, the

immigration authorities refused her request on the ground that the

Aliens Act expressly restricted the right to a temporary residence permit

to heterosexual couples and made no mention of same-sex couples.

In the Convention proceedings, the applicant complained of

discrimination on the basis of her sexual orientation. The Court found a

violation of Article 14 read in conjunction with Article 8. The judgment is

of interest for the following reasons.

(i) It extends the

Vallianatos and Others v. Greece

261

case-law on

non-cohabiting same-sex couples living in the same country to couples

of different nationalities who are prevented from cohabiting on a

permanent basis by immigration restrictions. In principle, the fact of

not cohabiting does not deprive same-sex couples living in different

countries of the stability required to bring them within the scope of

“family life” within the meaning of Article 8. The case thus fell within the

notion of “family life” as well as “private life” as the couple had been in a

stable relationship for several years and met up regularly.

(ii) It confirms that member States must show that differences

in treatment under the immigration rules based solely on sexual

orientation – such as a rule providing that only different-sex couples and

not same-sex couples may apply for a residence permit with a view to

family reunification – must be shown to be justified in accordance with

the Court’s case-law. This applied even though the member States enjoy

a wide margin of appreciation on matters relating to immigration.

***

The judgment in

Aldeguer Tomás v. Spain

262

raised the question whether

same-sex and different-sex couples were in an analogous situation as

regards the differing legislative choices previously made in their regard.

Spain introduced divorce legislation in 1981, allowing a person or

both persons in a different-sex union to remarry where one or both

had previously been legally married to a third person. The legislation

also entitled the surviving partner of a different-sex couple to obtain a

survivor’s pension where the other partner had died before the entry

into force of the 1981 law.

Spain recognised same-sex marriage in 2005. However, no provision

was made for the retroactive payment of a survivor’s pension in a

situation where one member of the same-sex couple had died before

the entry into force of the 2005 law.

261.

Vallianatos and Others v. Greece

[GC], nos. 29381/09 and 32684/09, ECHR 2013 (extracts).

262.

Aldeguer Tomás v. Spain,

no. 35214/09, 14 June 2016.

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The applicant was the surviving partner of a stable same-sex union

who was not entitled to a survivor’s pension. He complained under

Article 14 read in conjunction with Article 8 that heterosexual unmarried

couples were treated more favourably on account of the operation

of the retroactive survivor’s pension clause provided for in the 1981

divorce law.

The Court found against the applicant. Its reasons for doing so

are noteworthy.

The Court accepted that the applicant’s relationship with his late

partner fell within the notions of “private life” and “family life”, thus

confirming earlier case-law on this point (Schalk

and Kopf v. Austria

263

and

Vallianatos and Others

264

, cited above).

However, the central question was whether the applicant had been

treated less favourably in the enjoyment of his rights under Article 8

and Article 1 of Protocol No. 1 by reason of the fact that the domestic

authorities had not extended to him the same advantage given to the

surviving partner of a heterosexual couple on the introduction of the

divorce law. The answer to that question depended on whether the

applicant’s situation was comparable “to the situation that had arisen in

Spain a quarter of a century earlier, of a surviving partner of a different-

sex cohabiting couple, in which one or both partners were unable to

remarry because they were still married to another person whom they

were prevented from divorcing under the legislation in force at the

material time” (paragraph 85 of the judgment). The Court replied in the

negative: same-sex couples were unable to marry before 2005 since the

institution of marriage was restricted to different-sex couples; different-

sex couples in which one or both partners were legally married to a

third party could not remarry before 1981 on account of the absence

of divorce legislation. The legal impediments confronting the applicant

and the comparator relied on by him were therefore fundamentally

different. For that reason there had been no discrimination. The Court

also noted that Spain could not be faulted for not having legislated for

the recognition of the right to a survivor’s pension for same-sex couples

at an earlier stage, for example before the death of the applicant’s

partner. The timing for the introduction of such laws fell within the

State’s margin of appreciation (see

Schalk and Kopf,

cited above, §§ 105

and 108, and, more recently,

Oliari and Others v. Italy

265

263.

Schalk and Kopf v. Austria,

no. 30141/04, § 94, ECHR 2010.

264.

Vallianatos and Others v. Greece

[GC], nos. 29381/09 and 32684/09, § 73, ECHR

2013 (extracts).

265.

Oliari and Others v. Italy,

nos. 18766/11 and 36030/11, § 163, 21 July 2015.

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***

The

Taddeucci and McCall v. Italy

266

judgment concerned the application

of the same restriction to unmarried homosexual and heterosexual

couples and an alleged failure to treat the former differently.

The applicants, a same-sex couple, complained that they were

prevented from living together in Italy as a family because the Italian

authorities had refused as from 2004 to grant the second applicant, a

New Zealand national, a residence authorisation for family purposes.

The first applicant was an Italian national and the couple had lived

together there for ten months prior to the refusal. The refusal was based

on the fact that the applicants were not married, which, at the material

time, was a precondition for the grant of authorisation irrespective of

whether or not the couple was in a same-sex or a different-sex union.

The applicants eventually left Italy in 2009 to live in the Netherlands,

where they married in 2010.

The applicants maintained in the Convention proceedings that they

had been discriminated against in the enjoyment of their right to respect

for their family life since they were treated on a par with unmarried

different-sex couples.

The Court found for the applicants. The judgment is noteworthy for

the following reasons.

The applicants had been in a stable same-sex relationship since

1999 and had been living together in Italy for ten months. In line with

its established case-law (Schalk

and Kopf

267

, cited above, and

X and

Others v. Austria

268

), the Court had no difficulty in accepting that the

applicants enjoyed family life within the meaning of Article 8, with the

consequence that they could challenge under Article 14 the impact

which the refusal to grant the second applicant a residence permit had

had on the enjoyment of their Article 8 right.

The central issue for the Court was the determination of the

comparator given that the applicants’ situation was on the face of it

similar to that of an unmarried heterosexual couple, one of whom was

a non-EU national. Italian law at the time treated both situations alike

since the grant of a residence permit for family purposes was dependent

on the foreign-national partner being a “family member”, which in turn

required him or her to be married to the Italian-national partner.

266.

Taddeucci and McCall v. Italy,

no. 51362/09, 30 June 2016.

267.

Schalk and Kopf v. Austria,

no. 30141/04, § 94, ECHR 2010.

268.

X and Others v. Austria

[GC], no. 19010/07, § 95, ECHR 2013.

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Interestingly, the Court found that the applicants were in fact in a

different situation to that of an unmarried heterosexual couple in the

sense that under domestic law it was impossible for the second applicant

to become the spouse of the first applicant on account of the prohibition

on same-sex marriage and the absence of any form of legal recognition

of their union. Unmarried heterosexual couples, on the other hand, were

not faced with these obstacles since the foreign-national partner could

qualify as a family member through marriage to the Italian-national

partner. The manner in which the Court analysed the issue reflects the

principle first laid down in the judgment in

Thlimmenos v. Greece

269

namely, “[t]he right not to be discriminated against in the enjoyment of

the rights guaranteed under the Convention is also violated when States

without an objective and reasonable justification fail to treat differently

persons whose situations are significantly different”.

It is of further interest that the Court declined to examine whether

Italy had been obliged at the time of the first refusal to grant the second

applicant a residence permit (2004) or by the date of the couple’s

departure from Italy (2009) to have legislated for the legal recognition

of same-sex couples. It did not pronounce on whether the failure to do

so could be justified with reference to the State’s margin of appreciation

during this period. It confined its inquiry to establishing whether there

was reasonable and objective justification for limiting the notion of family

members to heterosexual spouses. It was important for the Court that

an unmarried heterosexual couple had the possibility to regularise their

situation through marriage and thus fulfil the family-member condition

for the grant of a residence permit to the foreign-national partner. Same-

sex couples had no such possibility under domestic law at the material

time and it was precisely this factor which distinguished the applicants’

situation from that of an unmarried heterosexual couple and required the

authorities to treat them differently from heterosexual couples who had

not regularised their situation. For the Court, there was no reasonable

and objective justification for not treating the applicants differently.

Article 14 of the Convention taken in conjunction

with Article 1 of Protocol No. 1

270

The judgment in

Guberina v. Croatia

271

related to a failure to take account

of the needs of a disabled child when determining a father’s eligibility

for tax relief on the purchase of property adapted to those needs.

269.

Thlimmenos v. Greece

[GC], no. 34369/97, § 44, ECHR 2000-IV.

270. See also under

Article 14 taken in conjunction with Article 8

above,

Aldeguer Tomás v.

Spain,

no. 35214/09, 14 June 2016.

271.

Guberina v. Croatia,

no. 23682/13, ECHR 2016.

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The applicant is the father of a severely disabled child who required

constant attention. He sold the family’s third-floor flat in a building

without a lift, and purchased a house so as to provide the child with

facilities which were better suited to his and the family’s needs. The

applicant sought tax relief on the purchase of the house under the

relevant legislation but his request was refused on the ground that the

flat he had sold met the needs of the family, since it was sufficiently large

and equipped with the necessary infrastructure such as electricity and

heating. No consideration was given to the plight of the child and the

absence of a lift in the building.

The applicant essentially complained in the Convention proceedings

that the manner of application of the tax legislation to his situation

amounted to discrimination, having regard to his child’s disability. The

Court found a breach of Article 14 of the Convention read in conjunction

with Article 1 of Protocol No. 1. The judgment is noteworthy for the

following reasons.

In the first place, the Court held that the applicant could complain of

discriminatory treatment on account of his child’s disability. In its view,

Article 14 also covered situations in which an individual is treated less

favourably on the basis of another’s status within the meaning of the

case-law under that provision. As the father of a disabled child for whom

he provided care, the applicant could rely on Article 14.

Secondly, the Court considered that the authorities had treated the

applicant like any other person who purchased property and sought

tax relief on the ground that their previous property failed to meet

basic infrastructure requirements of the type mentioned above. For

the Court, the essential question was to determine whether there was

objective and reasonable justification for not treating the applicant’s

situation differently, having regard to the factual inequality between his

situation and that of other claimants of tax relief on purchased property

(see in this connection,

Thlimmenos

272

, cited above). In its view, even

if the relevant tax legislation did not on the face of it appear to allow

the decision-maker to find a solution for the applicant’s situation, it

was noteworthy that other provisions of domestic law did address the

problems facing disabled persons in having access to buildings. The

availability of a lift was seen in domestic law as a basic requirement in

this connection. Furthermore, the Court observed that the authorities

had not taken into account Croatia’s relevant obligations under the

Convention on the Rights of Persons with Disabilities.

The failure to have

272.

Thlimmenos v. Greece

[GC], no. 34369/97, § 44, ECHR 2000-IV.

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regard to these wider disability-based considerations and obligations

had resulted in the application of an overly restrictive and mechanical

approach to the interpretation of the tax legislation as regards the

meaning of basic infrastructure requirements. It is of interest that the

Court was not prepared to accept by way of objective and reasonable

justification for the failure to take account of the applicant’s specific

situation the Government’s plea that the tax law was intended to assist

financially disadvantaged purchasers of property. Its response was that

this argument had never been invoked by the authorities as a reason for

rejecting the applicant’s claim for tax relief and for that reason it could

not speculate on its relevance.

Finally, the judgment can be viewed as a significant contribution to

the Court’s existing case-law on disability and is illustrative of the Court’s

readiness to have regard to a State’s obligations under other international

instruments when deciding on compliance with Convention obligations

in the area of discrimination.

Article 14 of the Convention taken in conjunction

with Article 2 of Protocol No. 1

The case of

Çam v. Turkey

273

concerned a visually impaired child who was

denied access to music studies.

The applicant was refused admission to the music section of a Turkish

academy. She had satisfied the academy that she had the technical

ability to pursue her education in her chosen instrument. However,

she was refused a place because she was unable to produce a medical

certificate drawn up in compliance with the necessary administrative

requirements and confirming to the academy’s satisfaction her physical

ability to follow its courses.

In the Convention proceedings, the applicant alleged that, because

of her disability, she had been discriminated against in her right to

education, contrary to Article 14 of the Convention read in conjunction

with Article 2 of Protocol No. 1.

The Court agreed with the applicant that she was refused access to

the academy solely on account of her visual disability. It was persuaded

that the academy was not in a position to provide education to disabled

persons regardless of the nature of their particular disability. The

academy’s insistence on a medical certificate compliant with its own

internal regulations could not disguise this fact.

The judgment is noteworthy for the following reasons.

273. Çam

v. Turkey,

no. 51500/08, 23 February 2016.

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In the first place, the Court ruled that the right guaranteed by

Article 2 of Protocol No. 1 was engaged on the facts of the case even

though the primary focus of the education provided by the academy

was on the development of the applicant’s musical talent.

Secondly, in finding that Article 14 had been breached, the Court drew

on the provisions of the

UN Convention on the Rights of Persons with

Disabilities

(which Turkey had ratified) and, in particular, the provisions

of its Article 2 on the requirement of “reasonable accommodation”,

meaning the adoption of “necessary and appropriate modification and

adjustments not imposing a disproportionate or undue burden, where

needed in a particular case, to ensure to persons with disabilities the

enjoyment or exercise on an equal basis with others of all human rights

and fundamental freedoms”.

Significantly, the Court reasoned, with reference to the particular

vulnerability of disabled children such as the applicant, that dis-

crimination based on an individual’s disability also arises when the

authorities refuse to examine the possibility of introducing measures

which could bring about a “reasonable accommodation”.

In finding that there had been a breach of the Convention, the

Court noted that the academy had neither sought to identify how the

applicant’s visual impairment could have impeded her ability to follow

music lessons nor examined the sort of measures which could be taken

in order to accommodate her disability.

The judgment reflects the importance which the Court attaches to

international-law developments when it comes to issues submitted to

its consideration and its willingness to interpret the scope of Convention

rights in the light of such developments.

Article 14 of the Convention taken in conjunction

with Article 3 of Protocol No. 1

The issue in

Partei Die Friesen v. Germany

274

was alleged discrimination

against a political party representing the interests of a minority group.

The applicant was a political party. It claimed to represent the

interests of the Frisian minority in Germany and was particularly active

in the

Land

of Lower Saxony. It failed to attain the 5% threshold for the

2008 parliamentary elections in Lower Saxony, obtaining only 0.3%

of the votes cast. In the Convention proceedings, the applicant party

argued that the imposition of the 5% threshold requirement amounted

to an interference with its right to participate in elections without being

274.

Partei Die Friesen v. Germany,

no. 65480/10, 28 January 2016.

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discriminated against, as guaranteed by Article 14 of the Convention

read in conjunction with Article 3 of Protocol No. 1.

The Court found that these provisions had not been violated. The

judgment may be seen as a noteworthy contribution to the case-law

on the scope of a Contracting Party’s obligations with regard to the

protection of minorities in the electoral sphere and the role of the

margin of appreciation in this connection.

The Court observed that the forming of an association in order to

express and promote its identity may be instrumental in helping a

minority to preserve and uphold its rights (see

Gorzelik and Others v.

Poland

275

). The applicant party was formed to represent the interests of

a national minority. The Court accepted its argument that the number

of Frisians in Lower Saxony was not high enough to reach the statutory

electoral threshold for obtaining a mandate.

Should it be treated differently on that account to other special-

interest parties representing the interests of a small part of the

population? On that point, the Court had regard to the Council of

Europe’s

Framework Convention for the Protection of National Minorities,

Article 15 of which emphasised the participation of national minorities

in public affairs. It observed, however, that the possibility of exemption

from minimum electoral threshold requirements was presented as one

of many options to attain this aim, and no clear and binding obligation

could be derived from that Convention to exempt national minorities

from electoral thresholds. States Parties to the Framework Convention

enjoyed a wide margin of appreciation as regards the implementation

of its Article 15. Accordingly, even if certain of the

Länder

in Germany

exempted national minorities from the threshold requirement, and even

if the Convention were to be interpreted in the light of the Framework

Convention, it could not be concluded that the Convention required

different treatment in favour of minority parties in this context.

Protection of property (Article 1 of Protocol No. 1)

Applicability

In its judgment in

Béláné Nagy v. Hungary

276

the Grand Chamber exam-

ined how the notion of “legitimate expectation” had evolved since its

judgment in

Kopeck�½ v. Slovakia

277

and decision in

Stec and Others v. the

United Kingdom

278

275.

Gorzelik and Others v. Poland

[GC], no. 44158/98, § 93, ECHR 2004-I.

276.

Béláné Nagy v. Hungary

[GC], no. 53080/13, ECHR 2016.

277.

Kopeck�½ v. Slovakia

[GC], no. 44912/98, ECHR 2004-IX.

278.

Stec and Others v. the United Kingdom

(dec.) [GC], nos. 65731/01 and 65900/01,

ECHR 2005-X.

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The applicant contributed to the social security scheme for

over twenty years. From 2001 she received a disability pension

(corresponding to a 67% loss in working capacity). Following a change

in the assessment methodology, her disability score fell below the

requisite minimum percentage and her pension was withdrawn. On

reapplying she was again found to have a health impairment exceeding

the relevant threshold. However, a new law in 2012 introduced a new

eligibility criterion (a required number of days of social security cover in

a given period) which she could not meet, with the result that she was

no longer eligible for a disability pension.

The applicant complained that the 2012 law meant that she was no

longer entitled to a disability pension due to conditions she could not

possibly fulfil although her health had not changed.

The Grand Chamber found a violation of Article 1 of Protocol No. 1.

(i) The background to the case is therefore the balance to be found

between the State’s freedom to change the modalities of social welfare

benefits, given budgetary and other constraints, and the need for an

individual reliant on social security benefits to have some certainty and

security as regards continuing eligibility. The key case-law issue is the

applicability of Article 1 of Protocol No. 1 and, notably, the applicant’s

“legitimate expectation” to continue to receive a social welfare benefit

notwithstanding legislative changes in eligibility criteria. The judgment

therefore comprises the first comprehensive review by the Grand

Chamber of the case-law on the subject since the principles were

recapitulated in

Kopeck�½,

cited above (see also

Stec and Others,

cited

above, and

Carson and Others v. the United Kingdom

279

(ii) For a legitimate expectation to constitute a possession, the Grand

Chamber clarified that, notwithstanding the diversity of the expressions

in the case-law referring to the requirement of a domestic legal basis

generating a proprietary interest, the general tenor of the case-law was

that the person had to have “an assertable right” which, applying the

Kopeck�½

principle of “a sufficient basis in national law”, may not fall short

of “a sufficiently established, substantive proprietary interest under the

national law”.

(iii) Applying that “legitimate expectation” case-law in the social

welfare context, the Court distinguished a situation where the person

concerned did not, or ceased to, satisfy the qualifying conditions from

the situation where the domestic legal conditions for the grant of

279.

Carson and Others v. the United Kingdom

[GC], no. 42184/05, ECHR 2010.

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any particular benefit had changed so that the person no longer fully

satisfied them.

In the latter context, that of the present case, the Grand Chamber

accepted that there could be some limitation on the State’s freedom

to legislate. It found that “a careful consideration of the individual

circumstances of the case – in particular, the nature of the change in

the requirement – may be warranted in order to verify the existence

of a sufficiently established, substantive proprietary interest under

the national law”. Such were, the Court stated, the demands of legal

certainty and the rule of law, which belong to the core values imbuing

the Convention.

(iv) On the facts of the case, the applicant was found to have

had a possession from 2001 when, having fulfilled all the eligibility

conditions, she was granted a disability pension, on the basis of which

grant she had a “legitimate expectation” that it would continue as long

as she continued to fulfil them. On the particular facts of the case, that

legitimate expectation continued to exist until the entry into force of

the 2012 law. The enactment of that law did not, of itself, undermine

the existence of her “legitimate expectation”, but rather was found to

constitute an interference with that legitimate expectation.

(v) The aim of the interference being the legitimate one of

“protecting the public purse by overhauling and rationalising the scheme

of disability benefits”, the Grand Chamber assessed the proportionality

of the interference and gleaned from the existing case-law those

elements relevant to that assessment including: the level of reduction

in benefits; the discriminatory nature of any loss of entitlement; the use

of transitional measures; any arbitrariness of the new condition; the

applicant’s good faith; and, importantly, any impairment of the essence

of the pension rights. Applying these criteria, the Grand Chamber found,

notwithstanding the wide margin of appreciation afforded to States

in this field, that the applicant had had to bear an excessive individual

burden and that there had been a violation of Article 1 of Protocol No. 1.

Enjoyment of possessions

In the

Béláné Nagy

judgment, cited above, the Grand Chamber assessed

the proportionality of an interference by the authorities in the right to

enjoyment of possessions in the form of social-security benefits (see

“Applicability” above).

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***

In issue in the judgment in

Philippou v. Cyprus

280

was the automatic loss of

the applicant’s civil-service pension entitlements following disciplinary

proceedings resulting in his dismissal.

The applicant, a civil servant of thirty-three years’ standing, was

convicted, among other serious offences, of dishonesty, obtaining

money by false pretences and forging cheques. In subsequent

disciplinary proceedings, and following a hearing at which the applicant

was legally represented, the Public Service Commission imposed on

the applicant the most severe of the range of penalties available to it,

namely dismissal, which automatically entailed the forfeiture of the

applicant’s civil-service pension.

In the Convention proceedings, the applicant complained that the

forfeiture of his pension breached Article 1 of Protocol No. 1.

The Court ruled against the applicant. Its finding that there had

been no breach of Article 1 was based on its assessment of the

concrete impact of the forfeiture on the applicant, having regard to the

circumstances of the case. The issue of proportionality was therefore

central to the outcome of the case. The Court had previously observed

in general (see

Da Silva Carvalho Rico v. Portugal

281

and

Stefanetti and

Others v. Italy

282

) that the deprivation of the entirety of a pension was

likely to breach Article 1 of Protocol No. 1 (see, for example,

Apostolakis

v. Greece

283

) and that, conversely, the imposition of a reduction which it

considers to be reasonable and commensurate would not (see, among

many other authorities,

Da Silva Carvalho Rico,

cited above;

Arras and

Others v. Italy

284

; and

Poulain v. France

285

Among other factors, the Court gave weight to the following:

(i) The applicant had benefited from extensive procedural guarantees

in the disciplinary proceedings, his personal situation was considered in

depth in those proceedings and he was able to challenge the forfeiture

decision before the Supreme Court at two levels of jurisdiction.

(ii) The disciplinary proceedings followed and were separate from

the criminal proceedings.

280.

281.

282.

283.

284.

285.

Philippou v. Cyprus,

no. 71148/10, 14 June 2016.

Da Silva Carvalho Rico v. Portugal

(dec.), no. 13341/14, 1 September 2015.

Stefanetti and Others v. Italy,

nos. 21838/10 and 7 others, 15 April 2014.

Apostolakis v. Greece,

no. 39574/07, 22 October 2009.

Arras and Others v. Italy,

no. 17972/07, 14 February 2012.

Poulain v. France

(dec.), no. 52273/08, 8 February 2011.

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(iii) The applicant was not left without any means of subsistence

since he remained entitled to receive a social-security pension to which

he and his employer had contributed.

(iv) A widow’s pension was paid to the applicant’s wife on the

assumption that he had died rather than been dismissed.

Weighing the seriousness of the offences committed by the applicant

against the effect of the disciplinary measures, the Court found that

the applicant had not been made to bear an individual and excessive

burden by reason of the forfeiture of his civil-service pension.

Control of the use of property

The judgment in

Ivanova and Cherkezov

286

, cited above, concerned

the imminent execution of a demolition order and the scope of the

protection afforded to the peaceful enjoyment of one’s possessions in

that context.

The applicants built a house without planning permission. The

local authority served a demolition order on them. The first applicant

brought judicial-review proceedings to challenge the lawfulness of

the order arguing, among other things, that the execution of the order

would entail for her the loss of her only home. The domestic courts

ruled against her, finding that the house had been built unlawfully and

its construction could not be legalised under the transitional amnesty

provisions of the governing legislation.

The Court found that the circumstances of the case gave rise to a

breach of Article 8 of the Convention but not to a breach of Article 1 of

Protocol No. 1. Its reasoning for so doing is interesting in that it illustrates

the difference between the interests protected by both provisions

and hence the particular nature of the protection afforded by each of

those Articles.

As to the complaint under Article 1 of Protocol No. 1, the Court’s

primary concern was to determine whether the implementation of

the demolition order would strike a fair balance between the first

applicant’s interest in keeping her possessions intact and the general

interest in ensuring the effective implementation of the prohibition

against building without a permit. This was an area in which States

enjoyed a wide margin of appreciation. For the Court, unlike Article 8

of the Convention, Article 1 of Protocol No. 1 did not inevitably require

a proportionality-sensitive assessment to be made in each individual

case of the necessity of enforcement measures in the planning field.

286.

Ivanova and Cherkezov v. Bulgaria,

no. 64577/15, 21 April 2016. See also under

Article 8

(Home)

above.

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The Court found support for this proposition in

James and Others v. the

United Kingdom

287

and in its decision in

Allen and Others v. the United

Kingdom

288

, where it had made similar rulings, albeit in somewhat

different contexts. It noted that the intensity of the interests protected

under the two Articles, and the resultant margin of appreciation left

to the domestic authorities, were not necessarily coextensive. On that

understanding, the Court concluded that the demolition order was

intended “to put things back in the position in which they would have

been if the first applicant had not disregarded the requirements of the

law”. The first applicant’s proprietary interest in the house could not

outweigh the authorities’ decision to order its demolition. Significantly,

the Court also observed that the order and its enforcement would

also serve to deter other potential lawbreakers, which was a relevant

consideration in view of the apparent pervasiveness of the problem of

illegal construction in Bulgaria.

Right to free elections (Article 3 of Protocol No. 1)

The case of

Paunović and Milivojević v. Serbia

289

concerned the controlling

of parliamentary seats by political parties.

In 2003 the applicants were elected to Parliament for their political

party in the general election organised under the proportional

representation system, in which votes are for a political party rather than

for individual candidates. Before the election all the candidates, including

the applicants, had been required by their party to sign undated

resignation letters to be entrusted to the party. Those documents also

authorised the party to appoint other candidates to replace them if

necessary. In early 2006, following political disagreements within the

party, the applicants expressly declared, in a signed and authenticated

statement of early May, their wish to retain their seats in the National

Assembly. In spite of that declaration, ten days later the leader of the

party dated the applicants’ resignation letters and remitted them to the

President of the Assembly. On the same day, Mr Paunović, producing

his authenticated statement from early May, personally informed

the parliamentary committee on administrative affairs that he had

no intention of resigning and that he considered null and void the

resignation letter remitted by the leader of the party. The committee

concluded, however, that the two applicants had genuinely resigned

287.

James and Others v. the United Kingdom,

21 February 1986, § 68, Series A no. 98.

288.

Allen and Others v. the United Kingdom

(dec.), no. 5591/07, § 66, 6 October 2009.

289.

Paunović and Milivojević v. Serbia,

no. 41683/06, 24 May 2016.

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and that they were no longer in office. The applicants were replaced by

other candidates from the same party.

Mr Paunović took the view that the termination of their office was

illegal and that there was no effective remedy by which to complain of

the breach of their rights.

For the first time the Court examined the lawfulness under domestic

law of the termination of parliamentary office in a context of party

control of seats. There are two aspects to be highlighted.

(i) The Court confirmed its long-standing case-law to the effect that

Article 3 of Protocol No. 1, in addition to the right to stand for election,

also guarantees the right to sit as MP once elected.

(ii) Even though Article 3 of Protocol No. 1 did not expressly require

a legal basis for the impugned measure, unlike other Convention

Articles, the Court inferred from the principle of the rule of law inherent

in the Convention as a whole that there was an obligation for States to

introduce a legislative framework and, if need be, an intra-legislative

framework, to comply with their Convention obligations.

In the present case, although there was a legal framework, the

impugned measure was taken outside it. Under domestic law a

resignation had to be handed in personally by the MP. Resignation

letters presented by the party were thus illegal. Consequently, there had

been a breach of Article 3 of Protocol No. 1.

The Court also found a violation of Article 13 of the Convention taken

together with Article 3 of Protocol No. 1.

OTHER CONVENTION PROVISIONS

Limitation on use of restrictions on rights (Article 18)

The

Navalnyy and Ofitserov v. Russia

290

judgment concerned the applic-

ability of Article 18 of the Convention when relied on in conjunction

with Articles 6 and 7.

The applicants relied on Article 18 in conjunction with Articles 6

and 7. In their view, they had been charged, prosecuted and convicted

of conspiracy to steal assets for reasons other than determining their

guilt. The first applicant was an anti-corruption campaigner, who

had unsuccessfully stood for election as mayor of Moscow in 2011.

The applicants contended that the first applicant’s prosecution and

conviction were intended to curtail his political activities. The Court

found that Article 6 of the Convention had been violated on account of

the unfairness of the proceedings, and that this conclusion dispensed

290.

Navalnyy and Ofitserov v. Russia,

nos. 46632/13 and 28671/14, 23 February 2016.

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it from having to examine separately the complaint under Article 7 of

the Convention.

The judgment is of interest in that the Court had to address the

applicability of Article 18 in relation to the other Articles relied on.

Article 18 states:

“The restrictions permitted under [the] Convention to the said

rights and freedoms shall not be applied for any purpose other

than those for which they have been prescribed.”

The Court has in previous cases found a breach of Article 18 in

combination with Article 5, the latter provision setting out clear and

exhaustive circumstances in which the liberty of the individual may

be restricted with justification (see, for example,

Gusinskiy v. Russia

291

;

Cebotari v. Moldova

292

;

Lutsenko v. Ukraine

293

;

Tymoshenko v. Ukraine

294

;

and

Ilgar Mammadov v. Azerbaijan

295

The structure of Article 6 (and Article 7) is different, as confirmed by

the Court in the instant case. In finding that the applicants’ complaint

was incompatible

ratione materiae

with the provisions of the Convention

relied on, it observed that Articles 6 and 7 did not contain any express

or implied restrictions that could form the subject of the Court’s

examination under Article 18. At the same time, the Court added the

caveat that this conclusion was to be seen as relevant to the applicants’

case. It is noteworthy in this connection that, in finding a breach of

Article 6, the Court highlighted the failure of the domestic courts to

address the obvious link between the first applicant’s public activities

and the decision to prosecute him and the second applicant.

***

The

Rasul Jafarov v. Azerbaijan

296

judgment is interesting as regards the

factual elements which can lead to a conclusion that a restriction under

domestic law was applied for reasons other than those prescribed by

the Convention.

The applicant, a prominent human rights activist in Azerbaijan, was

arrested in 2014 on various financial charges. He was detained until his

conviction and imprisonment in January 2015.

291.

292.

293.

294.

295.

296.

Gusinskiy v. Russia,

no. 70276/01, ECHR 2004-IV.

Cebotari v. Moldova,

no. 35615/06, 13 November 2007.

Lutsenko v. Ukraine,

no. 6492/11, 3 July 2012.

Tymoshenko v. Ukraine,

no. 49872/11, § 299, 30 April 2013.

Ilgar Mammadov v. Azerbaijan,

no. 15172/13, 22 May 2014.

Rasul Jafarov v. Azerbaijan,

no. 69981/14, 17 March 2016.

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He mainly alleged, relying on Article 18 in conjunction with Article 5,

that he had been arrested and detained to punish his criticism of the

government, to silence him as an NGO activist and human rights

defender and to discourage civil-society activity in Azerbaijan. His

arrest came a few months after the delivery of the

Ilgar Mammadov

297

judgment, cited above, in which the Court had found that the NGO

activist in that case had been arrested and charged in order to silence or

punish him, in violation of Article 18 of the Convention.

In the present case, the Court found,

inter alia,

that the charges

against the applicant were not based on a “reasonable suspicion”

(violation of Article 5 § 1) and that he had been arrested and detained

for reasons other than those prescribed by the Convention (violation of

Article 18 in conjunction with Article 5).

The judgment is of interest as regards the elements relied upon by

the Court for finding, under Article 18, that the restrictions had been

applied for reasons not prescribed by the Convention.

In previous cases, the Court was able to rely on a particular fact of the

individual case to reach this conclusion: for example, the plea bargain

concluded in

Gusinskiy

298

; the application to this Court in

Cebotari

299

;

particular features of the cases retained against the applicants in

Lutsenko

300

and

Tymoshenko

301

; and the applicant’s blog entries in

Ilgar

Mammadov,

all cited above.

In the present case, the Court relied on broader contextual factors

(as well as on the absence of “reasonable suspicion”) to find that the

applicant had been arrested and detained for reasons other than those

prescribed by the Convention. These factors were the “increasingly

harsh and restrictive legislative regulation of NGO activity and funding”;

the narrative of high-ranking officials and pro-government media

to the effect that NGOs and their leaders (including the applicant)

were foreign agents and traitors; and the fact that several notable

human-rights activists, who had also cooperated with international

organisations protecting human rights, had been similarly arrested.

The Court considered that these factors supported the applicant’s and

the third-party interveners’ argument to the effect that the applicant’s

arrest and detention were part of a larger campaign to “crack down on

human rights defenders in Azerbaijan, which had intensified over the

297.

298.

299.

300.

301.

Ilgar Mammadov v. Azerbaijan,

no. 15172/13, 22 May 2014.

Gusinskiy v. Russia,

no. 70276/01, ECHR 2004-IV.

Cebotari v. Moldova,

no. 35615/06, 13 November 2007.

Lutsenko v. Ukraine,

no. 6492/11, 3 July 2012.

Tymoshenko v. Ukraine,

no. 49872/11, 30 April 2013.

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summer of 2014”. The Court concluded, therefore, that the applicant had

been arrested and detained “in order to silence and punish [him] for his

activities in the area of human rights” and found a violation of Article 18

in conjunction with Article 5 of the Convention.

Striking out (Article 37)

302

The issue before the Grand Chamber in

Khan v. Germany

303

was whether

an application should be struck out since the applicant faced no risk of

expulsion in the foreseeable future.

In 1991 the applicant (a Pakistani national) arrived in Germany with

her husband. The couple had a son in 1995. The applicant received

a permanent residence permit in 2001. In 2005 she was convicted of

manslaughter. Given her mental incapacity, she was ordered to stay in a

psychiatric hospital. In 2011 the domestic courts confirmed an expulsion

order against her (inter

alia,

on the grounds that she constituted a

danger to the public, had not integrated, had limited contact with her

son and could receive medical treatment in Pakistan). Later that year,

she was released from hospital as she was considered no longer to be a

risk. No attempt to expel the applicant was made.

Before the Grand Chamber the Government submitted certain

assurances (which the Court found to be binding): a new order would

be required before any future expulsion; all domestic remedies would

be available against it; a medical examination would precede any

expulsion; and the applicant had been granted “tolerated residence”.

The Grand Chamber struck out the application under Article 37 § 1 (c)

of the Convention.

(i) The Grand Chamber distinguished two situations which lead to

the striking out of expulsion cases.

– When a residence permit has been granted and there is no risk of

expulsion, the Court considers the case to have been resolved within the

meaning of Article 37 § 1 (b).

– When a residence permit has not been granted but the

circumstances are such that there is no risk of expulsion for a

considerable time and any new expulsion order could be challenged,

the Court considers it is no longer justified to continue to examine the

case within the meaning of Article 37 § 1 (c). The present case fell within

this second group.

302. See also, under

Article 2

and

Article 3,

F.G. v. Sweden

[GC], no. 43611/11, ECHR 2016,

and, under

Article 3,

Paposhvili v. Belgium

[GC], no. 41738/10, 13 December 2016.

303.

Khan v. Germany

[GC], no. 38030/12, 21 September 2016.

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(ii) As to whether, nevertheless, there were “any special circumstances

regarding respect for human rights” warranting the Court’s examination

of the case, the Grand Chamber distinguished the present case from

that in its recent judgment in

F.G. v. Sweden

304

, cited above. That case

concerned “major issues under Articles 2 and 3 ”whereas the present

case did not go beyond the applicant’s specific situation.

***

The

Jeronovičs v. Latvia

305

judgment concerned the respondent State’s

continuing obligation to investigate even following a decision striking

out the complaint on the basis of a unilateral declaration.

By a decision of 10 February 2009, the Court struck out several

of the applicant’s complaints following the Government’s unilateral

declaration acknowledging,

inter alia,

a violation of Articles 3 and 13

of the Convention having regard to the applicant’s ill-treatment by the

police, the ineffectiveness of the ensuing investigation and the lack of

an effective remedy. The decision did not state that the Government

were obliged to continue to investigate the circumstances surrounding

the applicant’s ill-treatment (contrast with the position in

�½arković and

Others v. Croatia

306

Given the terms of the unilateral declaration, the applicant

requested the Latvian authorities to reopen the criminal proceedings

concerning his allegations of ill-treatment by the police. The prosecuting

authorities refused to do so. The applicant introduced a new application

complaining under Articles 3 and 13 of this refusal. The Grand Chamber

found a procedural violation of Article 3, with no separate issue arising

under Article 13 of the Convention.

This case is noteworthy because the Grand Chamber found that

the obligation to investigate alleged ill-treatment by State agents

subsisted, even after a striking-out decision on the basis of a unilateral

declaration, the applicant’s complaints regarding the ill-treatment and

related investigation.

Although the Court acknowledged that it might be called upon

to supervise the implementation of an undertaking in a unilateral

declaration and to examine whether there were any “exceptional

circumstances” justifying the restoration of an application to the list of

cases (Rule 41 § 5 of the Rules of Court), in the present case it considered

that there were no such exceptional circumstances because the text of

304.

F.G. v. Sweden

[GC], no. 43611/11, ECHR 2016, cited under

Article 2 (Expulsion)

above.

305.

Jeronovičs v. Latvia

[GC], no. 44898/10, ECHR 2016.

306.

�½arković and Others v. Croatia

(dec.), no. 75187/12, 9 June 2015.

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the prior decision provided a sufficient basis to establish a continuing

obligation on the part of the Government to investigate.

The source of this obligation was the Court’s statement in the striking-

out decision according to which the “decision is without prejudice to the

possibility for the applicant to exercise any other available remedies

in order to obtain redress”. The case-law in respect of ill-treatment by

State agents required an applicant to avail himself of remedies to obtain

redress but also imposed a corresponding obligation on the authorities

to provide that remedy in the form of an investigation of ill-treatment.

Compensation alone could not therefore fulfil the procedural obligation

(see

Gäfgen v. Germany

307

) and the Court could not, consequently, accept

the Government’s argument that compensation, for which the unilateral

declaration provided, sufficed. Since the authorities had refused to

reopen the criminal proceedings, there had been a violation of Article 3

of the Convention under its procedural limb.

***

The judgment in

V.M. and Others v. Belgium

308

concerned the striking

out of an application pending before the Grand Chamber because the

applicants’ representative had no contact with them.

The applicants were a Roma family (parents and five children) of

Serbian nationality. The oldest child was severely disabled. They sought

asylum in Belgium. Pending their appeal against their removal to France

(pursuant to the

Dublin II Regulation),

they had accommodation. On

the expiry of the time-limit in the order to leave Belgium, they had to

leave that accommodation. The family spent several days sleeping

outside. When again offered accommodation, it would appear that they

failed to turn up. They spent two weeks living in a railway station in

Brussels before accepting a voluntary-return programme to Serbia. Two

months later their eldest child died of a lung infection. Further to their

application to the Court (for which they were legally represented), the

Chamber found a violation of Article 3 as regards their living conditions

in Belgium, no violation of Article 2 as regards the death of their child,

and a violation of Article 13 (in conjunction with Articles 2 and 3) as

regards their appeal against the removal order.

A Panel of the Grand Chamber subsequently accepted the

Government’s request to refer the case to the Grand Chamber. In her

written and oral submissions to the Grand Chamber, the applicants’

lawyer confirmed that she had had no contact with the applicant family

307.

Gäfgen v. Germany

[GC], no. 22978/05, §§ 116 and 119, ECHR 2010.

308.

V.M. and Others v. Belgium

[GC], no. 60125/11, 17 November 2016.

Annual Report 2016

Overview of the Court’s case-law

Page 168

since before the delivery of the Chamber judgment. For this reason, the

Grand Chamber struck out the application pursuant to Article 37 § 1 (a)

of the Convention (on the grounds that the applicants did “not intend to

pursue an application”).

Three points are worth noting in this striking-out judgment.

(i) The judgment confirms that a form of authority is insufficient of

itself to justify the continuation of an application: contact between the

applicant and the representative had to be maintained throughout the

proceedings. Since there had been no contact since before the Chamber

judgment, the representative could not meaningfully continue the

present application before the Grand Chamber.

(ii) The judgment also confirms that, further to Article 44 § 2 of

the Convention, the referral and later striking-out of the application

mean that the Chamber judgment will never become final. Although

the applicants were therefore deprived of the benefit of the Chamber

judgment, the Grand Chamber considered that that was a situation

created by their failure to maintain contact with their representative.

(iii) Finally, the Grand Chamber judgment found that “respect for

the rights guaranteed by the Convention” did not require the continued

examination of the case (see

M.S.S. v. Belgium and Greece

309

, and

Tarakhel

310

, both cited above; compare and contrast

F.G. v. Sweden

311

;

and

Khan

312

, both cited above).

309.

310.

311.

312.

M.S.S. v. Belgium and Greece

[GC], no. 30696/09, ECHR 2011.

Tarakhel v. Switzerland

[GC], no. 29217/12, ECHR 2014 (extracts).

F.G. v. Sweden

[GC], no. 43611/11, §§ 81-82, ECHR 2016.

Khan v. Germany

[GC], no. 38030/12, 21 September 2016.

Annual Report 2016

Bringing the Convention home

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Chapter 4

Bringing the

Convention home

The programme “Bringing the Convention

closer to home” facilitates access to the

Convention at the national level.

he Court’s case-law information, training and outreach programme

was initiated in 2012 with a view to improving accessibility to and

understanding of leading Convention principles and standards at

the national level, in line with the conclusions of the Interlaken, İzmir,

Brighton and Brussels Conferences.

Within this programme “to bring the Convention closer to home”,

in 2016 the Registry published additional case-law guides and a new

handbook in the European law series; updated the institutional film

on the Court and launched two further

COURTalks-disCOURs

training

videos; increasingly engaged with national-level partners including

through web-conferencing and workshops on both case-law and the

HUDOC database; offered enhanced HUDOC search features and began

offering select publications in formats adapted to tablets, smartphones

and e-readers.

With the valuable support of certain governments and many other

partners that share the objective of this programme, 2016 also saw a sig-

nificant increase in the number of cases and case-law publications being

offered in languages other than English and French both on the Court’s

website and through the dedicated multilingual Twitter account.

The past year also saw the expansion of the new information-sharing

network involving the Court and national Superior Courts. The Superior

Courts Network now includes twenty-three courts from seventeen

States (for further details on this Network see “The

Court in 2016”).

Annual Report 2016

Bringing the Convention home

Page 170

DISSEMINATION OF THE COURT’S CASE-LAW

Print and digital collections of the leading cases

Every year, the Bureau of the Court selects approximately thirty of the

most important cases for publication in the

Reports of Judgments and

Decisions,

an official Court publication designed primarily for legal pro-

fessionals, libraries and academics.

In addition to the print volumes prepared in cooperation with Wolf

Legal Publishers, the

Reports

volumes are published online in the Court’s

e-Reports collection (see the Court’s website under

Case-law/Judgments

and decisions).

The

Reports

are published in five or six bilingual (English-French)

volumes per year accompanied by an index. A cumulative index will be

published in early 2017, covering all cases reported from the inception

of the single Court in 1998 up to and including 2014. In the near future

the

Reports

will also be available in separate monolingual editions.

The Registry would welcome proposals from partners interested in

publishing the

Reports

in languages other than English and French.

The HUDOC case-law database

Since the extensive redesign of the database in 2012 the Registry has con-

tinued to add features to HUDOC (hudoc.echr.coe.int).

Improvements

in 2016 included: a new filter for document types; additional Boolean

search features; and the ability to exclude metadata-only documents.

An updated and consolidated HUDOC user manual was released and is

available in English and French, to be followed by additional language

versions in 2017.

The HUDOC interface currently exists in English, French, Russian and

Turkish. A Spanish version will be launched in early 2017 and plans are

under way to develop Bulgarian, Georgian and Ukrainian versions.

A HUDOC user survey in the four interface languages showed a satis-

faction rate between 76% and 86% and generated various suggestions

for improvement which are now being examined. The Registry is also

studying the feasibility of enabling users to filter results by machine-ex-

tracted factual concepts. Such a filter would improve the search expe-

rience in particular for HUDOC beginners less familiar with the current

HUDOC keywords which are extracted mainly from the Convention text.

1. Quarterly updates to the lists of cases selected for publication in the

Reports

can be found

on the Court’s website under

Case-law/Judgments and decisions/Reports of judgments

and decisions.

2. FAQs, manuals and video tutorials on HUDOC are available on the Court’s website under

Case-law/Judgments and decisions/HUDOC database/More information.

Annual Report 2016

Bringing the Convention home

Page 171

The number of HUDOC visitors decreased by approximately 5% in

2016 (3,803,845 visitors as opposed to 4,013,746 visitors in 2015).

Case-law translations programme

The Registry continued its efforts to improve the accessibility and

understanding of the main Convention principles and standards in

those member States where neither of the Court’s official languages

is sufficiently understood. The translations programme has been an

important catalyst for setting up a network of partners ensuring the

translation of cases and publications into such languages.

An important component of this programme was the four-year

project for translating key case-law – principally the leading cases

selected by the Court’s Bureau – into twelve target languages with

the support of the Human Rights Trust Fund (HRTF). The beneficiary

States of this project were Albania, Armenia, Azerbaijan, Bosnia and

Herzegovina, Georgia, Montenegro, the Republic of Moldova, Serbia,

the former Yugoslav Republic of Macedonia, Turkey and Ukraine. In the

course of this project, which ended in 2016, over 3,500 translations were

produced.

The translations were commissioned from external trans-

lators, published in the HUDOC database and further disseminated by

national-level partners.

A stakeholder survey conducted towards the end of this project

showed a satisfaction rate in excess of 90% as regards the quality of the

translations. Well over 90% of the respondents also indicated having had

the opportunity to use the translations in legal practice, education and

training or in decision-making.

The Registry maintains a standing invitation to States, judicial train-

ing centres, associations of legal professionals, NGOs and other partners

to offer, for inclusion in HUDOC, any case-law translations to which they

have the rights. More than 16,000 additional translations have been pro-

vided to the Court through this network. The Registry also references on

its website third-party sites hosting translations of the Court’s case-law

and welcomes suggestions for the inclusion of further sites.

3. For more information, including the lists of project partners and cases selected for

translation into each language see the Court’s website under

Case-law/Judgments and

decisions/Case-law translations.

4. The translations are published with a disclaimer since the only authentic language

version(s) of a judgment or decision are in one or both of the Court’s official languages.

5. More information can be found on the Court’s website under

Case-law/Judgments and

decisions/Case-law translations/Existing translations/External online collections of translations;

scroll down to see the list of third-party sites.

Annual Report 2016

Bringing the Convention home

Page 172

As a result of the translations programme,

over 20,000 texts in thirty-one languages

other than English and French have now

translations

been made available in HUDOC, which has

become the first port of call for translations

of the Court’s case-law. The language-specific

languages

filter in HUDOC allows for rapid searching

of these translations, including in free text.

These translations now amount to 15% of all

HUDOC content.

In addition to translating select cases, certain States and a significant

number of other partners continue to support the Court’s work by offer-

ing to translate publications, Factsheets, Country Profiles and the like.

These translations are all made available on the Court’s website and dis-

seminated via a dedicated Twitter account (see “Internet

site and social

media”

below).

With the HRTF-supported project having ended in 2016, its longer-

term sustainability will ultimately depend on partner institutions in

each member State being designated to organise the translation of

the Court’s leading cases into the national language(s). To that end, the

Registrar of the Court wrote to all States in 2013 to suggest that they

consider arranging, with effect from 2015, the translation of those cases

which the Court’s Bureau considers to be of Europe-wide importance. A

number of States have responded positively to this invitation. It should

be recalled here that the 2015 Brussels Declaration called upon States

Parties to promote accessibility to the Court’s case-law by translating or

summarising significant judgments as required.

Given the interest in the Court’s case-law on other continents, the

Court has also joined forces with partners such as the EU-funded

programme “Towards Strengthened Democratic Governance in the

Southern Mediterranean” (South Programme II, 2015-2017), which has

contributed funding for translating select leading cases into Arabic.

20,000

6. Some thirty translations were pending at the end of 2016 (see the complete list online

under

Case-law/Case-law research reports).

Publishers or anyone wishing to translate and/

or reproduce Court materials are asked to contact

[email protected]

for further

instructions and in order to avoid duplicating an already pending translation.

7. The Declaration and examples of translation practices adopted in various States are

available at:

www.coe.int/t/DGHL/STANDARDSETTING/CDDH/REFORMECHR/Publications/

Proceedings-Brussels-Conference-2015.pdf.

8. This programme is implemented by the Council of Europe primarily in Jordan, Morocco

and Tunisia, as well as in other Southern Mediterranean countries.

Annual Report 2016

Bringing the Convention home

Page 173

Other publications and information tools

Jurisconsult’s Overview of the most significant cases

The Jurisconsult’s Overview provides valuable insight into the most

important judgments and decisions delivered by the Court each year,

setting out the salient aspects of the Court’s findings and their relevance

to the evolution of its case-law. The annual version of the Overview can

be consulted in this Annual Report (“Overview

of the Court’s case-law”)

and is also available for purchase as a standalone publication from

Wolf

Legal Publishers.

Both the annual and interim versions (the latter is pub-

lished halfway through the year) can also be downloaded free of charge

from the Court’s website, including in “reflowable” EPUB and MOBI

formats for users of tablets, smartphones and e-readers.

Case-law Information Note

The Case-law Information Note has played a key role in the dissemina-

tion of the Court’s case-law since the first monthly edition was published

in 1998. It has evolved considerably over the years and now contains,

in addition to a monthly round-up of interesting cases from the Court,

summaries of cases from other European and international jurisdictions

(courtesy of our partners in those courts), a news and publications

section and a monthly cumulative index.

The 200th edition of the Information Note published in October

2016 saw two further developments: a new, modern layout in both

the provisional (bilingual) and final (monolingual) versions, and also

the introduction of “reflowable” EPUB and MOBI formats of the provi-

sional version.

The Information Notes are now being translated

in extenso

into

Italian, Russian and Turkish, while certain summaries of particularly

important cases are also being translated into other languages. The

Court wishes to thank all its partners who have assisted it in this transla-

tion process and looks forward to working with new partners wishing to

translate the Note into additional languages.

The complete Information Notes and annual indexes are available on

the Court’s website, while individual legal summaries can be found in

the HUDOC database.

Case-law guides and research reports

The Directorate of the Jurisconsult – composed of the Case-Law

Information and Publications Division and the Research and Library

Division – published four new case-law guides covering Article 7 of the

Convention (no punishment without law), Article 15 (derogation in time

Annual Report 2016

Bringing the Convention home

Page 174

of emergency), Article 3 of Protocol No. 1 (right to free elections) and

Article 4 of Protocol No. 4 (prohibition of collective expulsions of aliens).

It also updated two reports researching the Court’s case-law, one on the

references to that of the Inter-American Court of Human Rights, and the

other relating to non-governmental organisations.

The Directorate of the Jurisconsult also updated its methodologi-

cal guide on how to make the best use of the HUDOC database, Court

publications, newsfeeds and other tools (Finding

and understanding

the case-law).

All these materials are available online under

Case-law/Case-

law analysis.

Handbooks on European law

In June 2016 the Court and the European Union Agency for Fundamental

Rights launched the

Handbook on European law relating to access to

justice.

This Handbook, the fifth in the series, is currently available in a

number of EU languages, with further language editions to follow in

2017. An update of the

Handbook on European non-discrimination law

being prepared and will be launched in the second half of 2017.

Other volumes in this series have covered asylum, borders

and immigration; data protection; and the rights of the child. All

Handbooks and language editions are available online under

Case-law/

Other publications.

Pilot series of training videos

The Registry launched, with the cooperation and support of the

Council of Europe’s Programme for Human Rights Education for Legal

Professionals (the HELP programme,

www.coe.int/HELP),

two further

videos in the pilot series

COURTalks-disCOURs,

one on

asylum

and the

other on

terrorism.

These recordings provide legal professionals and

civil-society representatives with an overview of the Court’s case-law on

these topical subjects.

Along with a first video on

admissibility criteria launched in

2015, the

COURTalks-disCOURs

videos serve as a training tool for

Handbook on access to justice

the HELP programme, judicial

Videos on asylum and terrorism

training institutes and Bar asso-

ciations, complementing other

Film on the Court

materials produced by the Court

Four case-law guides

and HELP. All the videos with their

NEW

Annual Report 2016

Bringing the Convention home

Page 175

transcripts have been published online in over ten languages (Case-law/

Case-law analysis/ COURTalks-disCOURs).

Factsheets and Country Profiles

In 2016 the Press Unit prepared five new Factsheets on the Court’s

case-law concerning, in particular, the right not to be tried or punished

twice, gender equality, austerity measures, mass surveillance and sur-

veillance in the workplace. Sixty Factsheets are now available in English

and French, many of which have been translated into German, Greek,

Italian, Polish, Romanian, Russian, Spanish and Turkish with the support

of, among others, the States concerned and national human-rights insti-

tutions. These Factsheets provide the reader with a rapid overview of

the most relevant cases concerning a particular topic and are regularly

updated to reflect the development of the case-law.

The Press Unit has also prepared Country Profiles covering each of

the forty-seven Council of Europe member States. These profiles, which

are updated regularly, provide general and statistical information on

each State as well as summaries of the most noteworthy cases.

The Factsheets and Country Profiles are available on the Court’s

website under

Press/Press resources/Factsheets

and

Press/Press

resources/Country profiles.

TRAINING OF LEGAL PROFESSIONALS

Judges and Registry members continued to offer their expertise at

case-law training events both at the Court and in member States. In

the context of the organisation of training sessions, the Court main-

tained its long-standing cooperation with the

Conseil d’État,

the Court

of Cassation and the

École Nationale de la Magistrature

in France.

Cooperation continued with the Supreme Court of Russia and the

Permanent Representation of Russia to the Council of Europe, and also

with the Swedish National Courts Administration and the Permanent

Representation of Turkey to the Council of Europe.

In partnership with the European Judicial Training Network, the

Court organised training sessions for judges and

prosecutors from the European Union.

In 2016 the Visitors’ Unit organised fifty-four

visitor groups

training sessions lasting between one and three

days for legal professionals from eighteen of the

forty-seven member States.

A first training course for German judges,

training sessions

organised in cooperation with the German

Ministry of Justice, took place this year.

500

Annual Report 2016

Bringing the Convention home

Page 176

The training programme set up in 2013 in cooperation with the

Parliamentary Assembly of the Council of Europe was continued, and

two information seminars were organised in 2016 for the Secretaries of

the national delegations to the Parliamentary Assembly. The Court also

took part in an information seminar organised by the Parliamentary

Assembly for the Human Rights Committee of the Georgian Parliament.

Presentations and hands-on workshops were also offered on how to

make the best use of the HUDOC database.

Finally, the Registry increasingly engaged with legal profession-

als and law students through web-conferencing, offering tailored

presentations and question-and-answer sessions to Bar associations

and law schools in Armenia, Georgia, the Republic of Moldova, Russia

and Ukraine.

GENERAL OUTREACH

Internet site and social media

The focal point of the Court’s communication policy is its website (www.

echr.coe.int),

which recorded a total of 5,997,669 visits in 2016 (a 1%

increase compared with 2015). The website provides a wide range of

information on all aspects of the Court’s work, including the latest news

on its activities and cases; details of the Court’s composition, organisa-

tion and procedure; Court publications and core Convention materials;

statistical and other reports; and information for potential applicants

and visitors.

The new multilingual Twitter account (twitter.com/echrpublication)

– providing updates on the latest publications, translations and other

case-law information tools – generated some 8,000 followers in

its first year of operation. Complementing the Press Unit’s account

(twitter.com/ECHR_Press), this platform seeks to improve understanding

of the Court’s case-law by conveying relevant information to legal pro-

fessionals, public officials and NGOs in their own language.

Lastly, the Court’s website provides a gateway to the Court library

website, which, though specialised in human rights law, also has materials

on comparative law and public international law. The library’s online cata-

logue, containing references to the secondary literature on the Convention

case-law and Articles, was consulted some 380,800 times in 2016.

Public-relations materials

A new film presenting the European Court of Human Rights has been

designed, made and produced by the Public Relations Unit. Aimed at a

wide audience, this video describes how the Court works, the challenges

Annual Report 2016

Bringing the Convention home

Page 177

it faces and the range of its activities through examples taken from the

case-law. The film has been enthusiastically and unanimously praised for

its contemporary approach and ability to make what can sometimes be

complex issues more accessible.

Initially produced in the Council of Europe’s official languages,

English

and

French,

the film on the Court has subsequently been released in

German.

It is currently being translated into other official languages of

the member States of the Council of Europe.

The “Applicants” pages, which are designed to assist ordinary indi-

viduals in their dealings with the Court, are now available in thirty-six

official languages of the member States. They have been updated and

amended throughout the year, particularly following the entry into

force of the amendments to Rule 47 of the Rules of Court. These pages,

which are available in the languages of all the member States, contain

all the documents necessary for making an application to the Court

together with translations of publications, flow charts and videos, and

useful links to help applicants understand how the Court functions. They

also host the “SOP” (State of Proceedings) search engine, which provides

information on cases assigned to a judicial formation and can be used to

find out what stage the proceedings relating to a particular application

have reached.

With the help of a voluntary contribution from Ireland, all the Court’s

hearings are filmed in their entirety and distributed on the Court’s

Internet site. In 2016 a new milestone of 200 webcasts was reached.

More general documents on the Court’s activities, such as

The ECHR

in facts and figures 2015

and

Overview 1959-2015

– with statistics on the

cases processed, the judgments delivered, the subject matter of viola-

tions found, and violations arranged by Article and by State – have also

been published.

The Court has also posted new videos on its YouTube channel

(www.youtube.com/user/EuropeanCourt). To foster awareness of the

Convention system among the general public and potential applicants,

the videos have been produced in the greatest possible number of offi-

cial languages of the Council of Europe’s member States.

Visits

In 2016 the Visitors’ Unit organised 493 information visits for a total of

13,672 members of the legal community. In all, it welcomed a total of

17,872 visitors in 2016 (compared with 19,355 in 2015).

Annual Report 2016

Bringing the Convention home

Page 178

APPENDIX

Cases selected for publication in the

Reports of Judgments and Decisions

2016

Cases are listed alphabetically by respondent State. By default, all references are to Chamber

judgments. Grand Chamber cases, whether judgments or decisions, are indicated by “[GC]”.

Decisions are indicated by “(dec.)”. Chamber judgments that are not yet “final” within the

meaning of Article 44 of the Convention

are marked “(not final)”.

The Court reserves the right to report some or all of the judgments and decisions listed below

in the form of extracts. The full original language version or versions of any such judgment

or decision will remain available for consultation in the HUDOC database.

Belgium

Lhermitte v. Belgium

[GC], no. 34238/09, 29 November 2016

Paposhvili v. Belgium

[GC], no. 41738/10, 13 December 2016

Croatia

Guberina v. Croatia,

no. 23682/13, 22 March 2016

Muršić v. Croatia

[GC], no. 7334/13, 20 October 2016

Czech Republic

Dubská and Krejzová v. the Czech Republic

[GC], nos. 28859/11 and

28473/12, 15 November 2016

Denmark

Biao v. Denmark

[GC], no. 38590/10, 24 May 2016

Hungary

Baka v. Hungary

[GC], no. 20261/12, 23 June 2016

Béláné Nagy v. Hungary

[GC], no. 53080/13, 13 December 2016

Karácsony and Others v. Hungary

[GC], nos. 42461/13 and 44357/13,

17 May 2016 (extracts)

Magyar Helsinki Bizottság v. Hungary

[GC], no. 18030/11, 8 November 2016

Italy

Khlaifia and Others v. Italy

[GC], no. 16483/12, 15 December 2016

Latvia

Avotiņš v. Latvia

[GC], no. 17502/07, 23 May 2016

Jeronovičs v. Latvia

[GC], no. 44898/10, 5 July 2016

9. List approved by the Bureau following recommendation by the Jurisconsult of the Court.

10. Article 44 § 2 of the Convention provides: “The judgment of a Chamber shall become

final (a) when the parties declare that they will not request that the case be referred to the

Grand Chamber; or (b) three months after the date of the judgment, if reference of the case

to the Grand Chamber has not been requested; or (c) when the panel of the Grand Chamber

rejects the request to refer under Article 43.”

Annual Report 2016

Bringing the Convention home

Page 179

Malta

Ramadan v. Malta,

no. 76136/12, 21 June 2016 (extracts)

Norway

A and B v. Norway

[GC], nos. 24130/11 and 29758/11, 15 November 2016

Republic of Moldova

Buzadji v. the Republic of Moldova

[GC], no. 23755/07, 5 July 2016 (extracts)

Mozer v. the Republic of Moldova and Russia

[GC], no. 11138/10,

23 February 2016

Netherlands

Murray v. the Netherlands

[GC], no. 10511/10, 26 April 2016

Romania

Bărbulescu v. Romania,

no. 61496/08, 12 January 2016

Lupeni Greek Catholic Parish and Others v. Romania

[GC], no. 76943/11,

29 November 2016

Russia

Frumkin v. Russia,

no. 74568/12, 5 January 2016 (extracts)

Mozer v. the Republic of Moldova and Russia

[GC], no. 11138/10,

23 February 2016

Blokhin v. Russia

[GC], no. 47152/06, 23 March 2016

Sweden

F.G. v. Sweden

[GC], no. 43611/11, 23 March 2016

J.K. and Others v. Sweden

[GC], no. 59166/12, 23 August 2016

Switzerland

Al-Dulimi and Montana Management Inc. v. Switzerland

[GC], no. 5809/08,

21 June 2016

Bédat v. Switzerland

[GC], no. 56925/08, 29 March 2016

Meier v. Switzerland,

no. 10109/14, 9 February 2016

Turkey

Cumhuriyet Halk Partisi v. Turkey,

no. 19920/13, 26 April 2016 (extracts)

İzzettin Doğan and Others v. Turkey

[GC], no. 62649/10, 26 April 2016

United Kingdom

Armani Da Silva v. the United Kingdom

[GC], no. 5878/08, 30 March 2016

Ibrahim and Others v. the United Kingdom

[GC], nos. 50541/08 and

3 others, 13 September 2016

Annual Report 2016

Judicial activities

Page 181

Chapter 5

Judicial activities

The Court delivered 993 judgments in 2016,

including 27 by the Grand Chamber.

n 2016

the Court delivered a total of 993 judgments (compared with

823 in 2015). 27 judgments were delivered by the Grand Chamber,

656 by Chambers and 310 by Committees of three judges.

In practice, most applications before the Court were resolved by a

decision. Approximately 300 applications were declared inadmissible or

struck out of the list by Chambers, and some 5,250 by Committees. In

addition, single judges declared inadmissible or struck out some 30,100

applications (36,300 in 2015).

By the end of the year, the total number of applications pending

before the Court had increased to 79,750 from a total of 64,850 at the

beginning of the year.

GRAND CHAMBER

Activities

In 2016 the Grand Chamber held 18 oral hearings. It delivered

27 judgments in total (concerning 33 applications), including 2 on the

merits only and 2 striking-out judgments.

At the end of the year 27 cases (concerning 37 applications) were

pending before the Grand Chamber.

Cases accepted for referral to the Grand Chamber

In 2016 the 5-member panel of the Grand Chamber held 8 meetings to

examine requests by the parties for cases to be referred to the Grand

Chamber under Article 43 of the Convention. It considered 151 requests:

in 92 cases by the Government, in 55 by the applicant and in 4 by both

the Government and the applicant.

The panel accepted requests in the following cases:

1. For further statistical information regarding the Court’s activities, see the “Statistics”

chapter, and the Court’s website (www.echr.coe.int) under Statistics.

Annual Report 2016

Judicial activities

Page 182

Bărbulescu v. Romania,

no. 61496/08

Fábián v. Hungary,

no. 78117/13

Garib v. the Netherlands,

no. 43494/09

Jakeljić v. Croatia, no. 22768/12

and

Radomilja and Others v. Croatia,

no. 37685/10

Károly Nagy v. Hungary,

no. 56665/09

Khlaifia and Others v. Italy,

no. 16483/12

Lopes de Sousa Fernandes v. Portugal,

no. 56080/13

Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina,

no. 17224/11

Merabishvili v. Georgia,

no. 72508/13

Nagmetov v. Russia,

no. 35589/08

Naït-Liman v. Switzerland,

no. 51357/07

Ramos Nunes de Carvalho e Sá v. Portugal,

nos. 55391/13 and 2 others

Regner v. the Czech Republic,

no. 35289/11

Simeonovi v. Bulgaria,

no. 21980/04

Cases in which jurisdiction was relinquished by a Chamber

in favour of the Grand Chamber

First Section –

Moreira Ferreira v. Portugal (no. 2),

no. 19867/12;

Correia de

Matos v. Portugal,

no. 56402/12

Fourth Section –

Harkins v. the United Kingdom,

no. 71537/14

SECTIONS

In 2016 the Sections delivered 656 Chamber judgments (concerning

922 applications

) and 310 Committee judgments (concerning

971 applications).

At the end of the year, a total of approximately 75,900 Chamber or

Committee applications were pending before the Sections of the Court.

SINGLE-JUDGE FORMATION

In 2016 approximately 30,100 applications were declared inadmissible

or struck out of the list by single judges.

At the end of the year, approximately 3,800 applications were

pending before that formation.

2. Judgment of the Grand Chamber delivered on 15 December 2016.

3. This figure does not include joined applications declared inadmissible in their entirety

within a judgment.

Annual Report 2016

Judicial activities

Page 183

COMPOSITION OF THE COURT

At 31 December 2016 the Court was composed as follows in order of precedence:

Judge

Guido Raimondi, President

András Sajó, Vice-President

Işıl Karakaş, Vice-President

Luis López Guerra, Section President

Mirjana Lazarova Trajkovska,

Section President

Angelika Nußberger, Section President

Khanlar Hajiyev

Ledi Bianku

Nona Tsotsoria

Nebojša Vučinić

Kristina Pardalos

Ganna Yudkivska

Vincent A. De Gaetano

Julia Laffranque

Paulo Pinto de Albuquerque

Linos-Alexandre Sicilianos

Erik Møse

Helen Keller

André Potocki

Paul Lemmens

Helena Jäderblom

Aleš Pejchal

Krzysztof Wojtyczek

Valeriu Griţco

Faris Vehabović

Country

Italy

Hungary

Turkey

Spain

The former Yugoslav Republic of

Macedonia

Germany

Azerbaijan

Albania

Georgia

Montenegro

San Marino

Ukraine

Malta

Estonia

Portugal

Greece

Norway

Switzerland

France

Belgium

Sweden

Czech Republic

Poland

Republic of Moldova

Bosnia and Herzegovina

Annual Report 2016

Judicial activities

Page 184

Judge

Ksenija Turković

Dmitry Dedov

Egidijus Kūris

Robert Spano

Iulia Motoc

Jon Fridrik Kjølbro

Branko Lubarda

Yonko Grozev

Síofra O’Leary

Carlo Ranzoni

Mārtiņš Mits

Armen Harutyunyan

Stéphanie Mourou-Vikström

Georges Ravarani

Gabriele Kucsko-Stadlmayer

Pere Pastor Vilanova

Alena Poláčková

Pauliine Koskelo

Georgios Serghides

Marko Bošnjak

Tim Eicke

Roderick Liddell, Registrar

Françoise Elens-Passos, Deputy Registrar

Country

Croatia

Russian Federation

Lithuania

Iceland

Romania

Denmark

Serbia

Bulgaria

Ireland

Liechtenstein

Latvia

Armenia

Monaco

Luxembourg

Austria

Andorra

Slovak Republic

Finland

Cyprus

Slovenia

United Kingdom

NB: The seat of the judge elected in respect of the Netherlands is currently vacant.

Annual Report 2016

Judicial activities

Page 185

COMPOSITION OF THE SECTIONS

First Section

1 January 2016

Mirjana Lazarova Trajkovska,

President

Ledi Bianku, Vice-President

Guido Raimondi

Kristina Pardalos

Linos-Alexandre Sicilianos

Paul Mahoney

Aleš Pejchal

Robert Spano

Armen Harutyunyan

Pauliine Koskelo

A. Wampach, Deputy Registrar

1 June 2016

Mirjana Lazarova Trajkovska,

President

Ledi Bianku, Vice-President

Guido Raimondi

Kristina Pardalos

Linos-Alexandre Sicilianos

Paul Mahoney

Aleš Pejchal

Robert Spano

Armen Harutyunyan

Pauliine Koskelo

Abel Campos, Registrar

Renata Degener, Deputy Registrar

16 March 2016

Mirjana Lazarova Trajkovska,

President

Ledi Bianku, Vice-President

Guido Raimondi

Kristina Pardalos

Linos-Alexandre Sicilianos

Paul Mahoney

Aleš Pejchal

Robert Spano

Armen Harutyunyan

Pauliine Koskelo

Abel Campos, Registrar

12 September 2016

Mirjana Lazarova Trajkovska,

President

Ledi Bianku, Vice-President

Guido Raimondi

Kristina Pardalos

Linos-Alexandre Sicilianos

Aleš Pejchal

Robert Spano

Armen Harutyunyan

Pauliine Koskelo

Tim Eicke

Abel Campos, Registrar

Renata Degener, Deputy Registrar

Annual Report 2016

Judicial activities

Page 186

Second Section

1 January 2016

Işıl Karakaş, President

Julia Laffranque, Vice-President

Nebojša Vučinić

Paul Lemmens

Valeriu Griţco

Ksenija Turković

Jon Fridrik Kjølbro

Stéphanie Mourou-Vikström

Georges Ravarani

Stanley Naismith, Registrar

Abel Campos, Deputy Registrar

Third Section

1 January 2016

Luis López Guerra, President

Helena Jäderblom, Vice-President

George Nicolaou

Helen Keller

Johannes Silvis

Dmitry Dedov

Branko Lubarda

Pere Pastor Vilanova

Alena Poláčková

Stephen Phillips, Registrar

Marialena Tsirli, Deputy Registrar

1 September 2016

Luis López Guerra, President

Helena Jäderblom, Vice-President

Helen Keller

Dmitry Dedov

Branko Lubarda

Pere Pastor Vilanova

Alena Poláčková

Georgios A. Serghides

Stephen Phillips, Registrar

Fatoş Aracı, Deputy Registrar

1 April 2016

Luis López Guerra, President

Helena Jäderblom, Vice-President

Helen Keller

Johannes Silvis

Dmitry Dedov

Branko Lubarda

Pere Pastor Vilanova

Alena Poláčková

Georgios A. Serghides

Stephen Phillips, Registrar

Marialena Tsirli, Deputy Registrar

Annual Report 2016

Judicial activities

Page 187

Fourth Section

1 January 2016

András Sajó, President

Vincent A. De Gaetano, Vice-President

Boštjan M. Zupančič

Nona Tsotsoria

Paulo Pinto de Albuquerque

Krzysztof Wojtyczek

Egidijus Kūris

Iulia Motoc

Gabriele Kucsko-Stadlmayer

Françoise Elens-Passos, Registrar

Fatoş Aracı, Deputy Registrar

1 June 2016

András Sajó, President

Vincent A. De Gaetano, Vice-President

Nona Tsotsoria

Paulo Pinto de Albuquerque

Krzysztof Wojtyczek

Egidijus Küris

Iulia Motoc

Gabriele Kucsko-Stadlmayer

Marko Bošnjak

Marialena Tsirli, Registrar

Andrea Tamietti, Deputy Registrar

16 March 2016

András Sajó, President

Vincent A. De Gaetano, Vice-President

Boštjan M. Zupančič

Nona Tsotsoria

Paulo Pinto de Albuquerque

Krzysztof Wojtyczek

Egidijus Kūris

Iulia Motoc

Gabriele Kucsko-Stadlmayer

Marialena Tsirli, Registrar

Fatoş Aracı, Deputy Registrar

Fifth Section

1 January 2016

Angelika Nußberger, President

Ganna Yudkivska, Vice-President

Khanlar Hajiyev

Erik Møse

André Potocki

Faris Vehabović

Yonko Grozev

Síofra O’Leary

Carlo Ranzoni

Mārtiņš Mits

Claudia Westerdiek, Registrar

Milan Blaško, Deputy Registrar

1 November 2016

Angelika Nußberger, President

Erik Møse, Vice-President

Khanlar Hajiyev

Ganna Yudkivska

André Potocki

Faris Vehabović

Yonko Grozev

Síofra O’Leary

Carlo Ranzoni

Mārtiņš Mits

Claudia Westerdiek, Registrar

Milan Blaško, Deputy Registrar

Annual Report 2016

Judicial activities

Page 188

THE PLENARY COURT

14 November 2016

Front row, from left to right

Ganna Yudkivska, Nebojša Vučinić, Ledi Bianku, Angelika Nußberger,

Luis López Guerra, András Sajó, Guido Raimondi

Middle row, from left to right

Helen Keller, Georgios Serghides, Alena Poláčková, Ksenija Turković,

Egidijus Kūris, Síofra O’Leary, Valeriu Griţco, Faris Vehabović, Julia

Laffranque

Back row, from left to right

Roderick Liddell, Aleš Pejchal, Pauliine Koskelo, Erik Møse, Marko

Bošnjak, Stéphanie Mourou-Vikström, Branko Lubarda, Paul Lemmens,

Paulo Pinto de Albuquerque

Annual Report 2016

Judicial activities

Page 189

Front row, from left to right

Işıl Karakaş, Mirjana Lazarova Trajkovska, Khanlar Hajiyev, Nona Tsotsoria,

Kristina Pardalos, Vincent A. De Gaetano

Middle row, from left to right

André Potocki, Robert Spano, Krzysztof Wojtyczek, Armen Harutyunyan

Back row, from left to right

Linos-Alexandre Sicilianos, Carlo Ranzoni, Iulia Motoc, Pere Pastor

Vilanova, Helena Jäderblom, Dmitry Dedov, Jon Fridrik Kjølbro, Gabriele

Kucsko-Stadlmayer, Georges Ravarani, Tim Eicke, Françoise Elens-Passos,

Yonko Grozev

Annual Report 2016

Statistics

Page 191

Chapter 6

Statistics

A glossary of statistical terms is available on the Court’s website

(www.echr.coe.int) under Statistics. Further statistics are available

online.

EVENTS (2015-16)

Applications allocated to a judicial formation

(round figures [50])

Applications allocated

2016

53,500

2015

40,550

+/-

32%

Interim procedural events

2016

Applications communicated to

respondent Government

9,534

2015

15,964

+/-

- 40%

Applications decided

2016

By decision or judgment

– by judgment delivered

– by decision (inadmissible/struck out)

38,505

1,926

36,579

2015

45,574

2,441

43,133

+/-

- 16%

- 21%

- 15%

Pending applications

(round figures [50])

Applications pending before

a judicial formation

– Chamber and Grand Chamber

– Committee

– Single-judge formation

31/12/2016

79,750

28,450

47,500

3,800

01/01/2016

64,850

27,200

34,500

3,150

+/-

23%

38%

21%

Pre-judicial applications

(round figures [50])

Applications at pre-judicial stage

31/12/2016

13,800

2016

Applications disposed of administratively

20,950

01/01/2016

10,000

2015

32,400

+/-

38%

+/-

- 35%

Annual Report 2016

Statistics

Page 192

PENDING CASES AT 31 DECEMBER

2016 (BY RESPONDENT STATES)

Applications pending before a judicial formation on 31 December 2016 by Defending State

1,588

122

1,662

361

1,272

723

600

147

403

2,077

213

707

8,962

6,180

172

290

1,283

111

256

1,818

179

7,402

7,821

1,190

169

1,587

144

150

265

12,575

18,171

231

2,000 4,000 6,000 8,000 10,00012,00014,00016,00018,00020,000

488

Total: 79,750 applications pending before a judicial formation

PENDING CASES AT 31 DECEMBER 2016 (MAIN RESPONDENT STATES)

Armenia

1,600

2.0%

Remaining 37 States

11,500

14.4%

Ukraine

18,150

22.8%

Azerbaijan

1,650

2.1%

Poland

1,800

2.3%

Georgia

2,100

2.6%

Italy

6,200

7.8%

Annual Report 2016

Romania

7,400

9.3%

Turkey

12,600

15.8%

Russia

7,800

9.8%

Hungary

8,950

11.2%

Statistics

Total

number of pending applications: 79,750

Page 193

Annual Report 2016

COURT’S WORKLOAD BY STATE OF PROCEEDINGS AND APPLICATION TYPE AT 31 DECEMBER 2016

Statistics

Pending Government action

2,778

3.5%

Communicated

24,616

30.9%

Admissible

517

0.6%

Single Judge or Committee

3,780

4.7%

Page 194

Total: 79,750 applications

Chamber or Committee

–

awaiting first examination

48,059

60.3%

VIOLATIONS BY SUBJECT MATTER (2016)

Other violations

14.05%

Protection of property

(Article 1 of Protocol No. 1)

7.56%

Right to life (Article 2)

5.63%

Prohibition of torture and

inhuman or degrading treatment

(Article 3)

19.76%

Annual Report 2016

Right to an

effective remedy

(Article 13)

9.63%

Right to liberty and security

(Article 5)

20.4%

Right to a fair trial (Article 6)

22.97%

Statistics

Page 195

Annual Report 2016

APPLICATIONS ALLOCATED TO A JUDICIAL FORMATION (2001-16)

70,000

61,100

60,000

49,600

50,000

39,200

40,000

32,500

30,000

28,200 27,200

35,300

41,500

40,600

57,000

56,200

53,500

64,200 64,900 65,800

Statistics

Page 196

20,000

13,800

10,000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

JUDGMENTS (2001-16)

A judgment may concern more than one application.

1,800

1,625

1,600

1,400

1,200

1,000

800

600

400

200

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

888

1,105

1,157

1,093

916

844

703

718

993

891

823

Annual Report 2016

1,560

1,503

1,543

1,499

Statistics

Page 197

Annual Report 2016

ALLOCATED APPLICATIONS BY STATE AND BY POPULATION (2013-16)

State

Albania

Andorra

Armenia

Austria

Azerbaijan

Belgium

Bosnia and Herzegovina

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Georgia

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Liechtenstein

Applications allocated to a judicial formation

2013

106

196

437

324

270

870

1,209

1,840

144

481

237

315

1,536

157

1,525

728

991

3,180

322

2014

156

315

402

159

667

928

1,096

370

187

185

1,142

102

1,026

585

2,403

5,490

298

2015

147

122

261

268

202

908

1,031

812

340

190

177

1,087

789

457

4,234

1,885

244

2016

147

753

236

333

184

1,033

882

764

338

206

196

916

676

337

5,569

1,409

258

1.1.2013

2,899

3,027

8,452

9,356

11,162

3,829

7,285

4,262

866

10,516

5,603

1,320

5,427

65,579

4,498

80,524

11,063

9,909

322

4,591

59,685

2,024

Population (1,000)

1.1.2014

2,896

3,017

8,507

9,477

11,204

3,831

7,246

4,247

858

10,512

5,617

1,316

5,451

65,835

4,490

80,767

10,927

9,877

326

4,605

60,783

2,001

1.1.2015

2,892

3,017

8,576

9,593

11,209

3,825

7,202

4,225

847

10,538

5,660

1,313

5,472

66,415

4,490

81,198

10,858

9,856

329

4,629

60,796

1,986

1.1.2016

2,886

2,999

8,700

9,706

11,290

3,825

7,154

4,191

848

10,554

5,707

1,316

5,487

66,662

4,490

82,162

10,784

9,830

333

4,659

60,666

1,969

Allocated/population (10,000)

2013

0.37

0.26

0.65

0.52

0.35

0.24

2.27

1.66

4.32

1.66

0.46

0.15

1.80

0.58

0.23

0.35

0.19

0.66

1.00

0.28

0.14

0.53

1.59

1.89

2014

0.28

0.66

0.52

0.37

0.42

0.14

1.74

1.28

2.58

0.64

0.35

0.12

1.42

0.34

0.17

0.23

0.13

0.54

2.43

0.86

0.07

0.90

1.49

3.24

2015

0.51

0.79

0.40

0.30

0.28

0.18

2.37

1.43

1.92

0.38

0.32

0.08

1.45

0.32

0.16

0.18

0.10

0.42

4.30

0.30

0.04

0.31

1.23

3.51

2016

0.51

0.53

2.51

0.27

0.34

0.16

2.70

1.23

1.82

0.40

0.32

0.08

1.57

0.36

0.14

0.16

0.08

0.31

5.67

0.72

0.06

0.23

1.31

2.63

Statistics

Page 198

State

Lithuania

Luxembourg

Malta

Republic of Moldova

Monaco

Montenegro

Netherlands

Norway

Poland

Portugal

Romania

Russia

San Marino

Serbia

Slovak Republic

Slovenia

Spain

Sweden

Switzerland

The former Yugoslav

Republic of Macedonia

Turkey

Ukraine

United Kingdom

Total

Applications allocated to a judicial formation

2013

428

1,354

289

778

148

3,968

267

5,413

12,328

5,058

464

496

781

362

442

535

3,505

13,132

908

65,790

2014

387

1,101

158

674

141

2,747

252

4,425

8,913

2,786

324

352

642

272

304

382

1,584

14,181

720

56,208

2015

376

1,011

129

495

2,178

233

4,604

6,003

1,235

353

213

552

212

318

362

2,212

6,007

575

40,557

2016

406

839

165

494

2,424

155

8,204

5,591

1,336

309

239

626

138

258

340

8,308

8,658

373

53,493

1.1.2013

2,972

537

421

3,559

623

16,780

5,051

38,533

10,487

20,020

143,507

7,182

5,411

2,059

46,728

9,556

8,039

2,062

75,627

45,373

63,905

820,814

Population (1,000)

1.1.2014

2,943

550

425

3,559

622

16,829

5,108

38,018

10,427

19,947

143,667

7,147

5,416

2,061

46,512

9,645

8,140

2,066

76,668

45,246

64,351

823,320

1.1.2015

2,921

563

429

3,555

622

16,901

5,166

38,006

10,375

19,871

146,267

7,114

5,421

2,063

46,450

9,747

8,238

2,069

77,696

45,246

64,875

828,705

1.1.2016

2,889

576

434

3,553

622

16,979

5,214

37,967

10,341

19,760

146,545

7,076

5,426

2,064

46,438

9,851

8,325

2,071

78,741

45,246

65,383

831,904

Allocated/population (10,000)

2013

1.44

0.71

1.19

3.80

2.78

4.64

0.46

0.29

1.03

0.25

2.70

0.86

1.18

7.04

0.86

2.41

0.17

0.38

0.55

2.59

0.46

2.89

0.14

0.80

2014

1.31

0.42

0.92

3.09

1.11

2.54

0.40

0.28

0.72

0.24

2.22

0.62

1.47

3.90

0.60

1.71

0.14

0.28

0.37

1.85

0.21

3.13

0.11

0.68

2015

1.29

0.39

0.56

2.84

2.37

2.07

0.29

0.14

0.57

0.22

2.32

0.41

1.21

1.74

0.65

1.03

0.12

0.22

0.39

1.75

0.28

1.33

0.09

0.49

2016

1.41

0.66

0.60

2.36

1.58

2.65

0.29

0.17

0.64

0.15

4.15

0.38

3.94

1.89

Annual Report 2016

0.57

1.16

0.13

0.14

0.31

1.64

1.06

1.91

0.06

0.64

Statistics

Page 199

The Council of Europe member States had a combined population of approximately 832 million inhabitants on 1 January 2016. The average number of applications

allocated per 10,000 inhabitants was 0.64 in 2016. Sources 2016: Internet sites of the Eurostat service (“Population and social conditions”).

Annual Report 2016

Statistics

Page 200

VIOLATIONS BY ARTICLE AND BY RESPONDENT STATE (2016)

Belgium

Bosnia and Herzegovina

Czech Republic

Denmark

Azerbaijan

Liechtenstein

tio

he unis

cle ied

rti

r A be t

Ot ot to twic

tio

lec

fre

rty

tio

r im d y

isc

ive

ffe

n e arry d

of tion n

m ia

do oc

ee ass

xp scie

om h t ,

ou n

t h io

of relig ivat

om d

ed an for

pe fe

es y l i

o r mil

t t fa

en ent

-e

tri

rit

/fo

lib

lav

on our

iti

ib lab

vio gati

iti

nd ve i

tr e

ffe

rtu

tio

n o stiga

life

hu hibi

ive tion

iva

–

ife

tri

en s

m t

tle en o

et m g n

y s udg din

nd t j in

ie ou ts f

en tion eas

m a

dg ol

Ju vi ing

fin on

ts lati

en io

m v

P1-4

P1-3

P1-1

P1-2

Lithuania

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Estonia

Cyprus

Georgia

Andorra

Armenia

Austria

Bulgaria

Croatia

Albania

Total

2/3

Finland

France

2016

tio

he unis

s o or p

cle ied

rti

be e

Ot ot to twic

tio

lec

t io

tio

rim dy

ive

iti

ar nd

o m ly a

gh em

of ion

iat sion

do oc

ee ass

ex nsci

ee oug n

t h io t e a

of elig

m d r priv

an for

pe fe

es ly li

t t fam ith

tw t

No n-e

No pro

tri

rit

/fo

sla

of r

iti

ib lab

lat

vio

tig nt

iti

e i reat

Co ctiv

rtu n

t ig e

iti

f li

oh ive i on o

r iv

–d

ife

gm riki

en s

em ent o

ttl

se gm g

ly ud din

nd t j in

ie ou ts f

en on as

m ati le

dg ol at

Ju vi ng

fi n

ts ti

en iola

2016

Luxembourg

Malta

Republic of Moldova

Monaco

Montenegro

Netherlands

Norway

Poland

Portugal

Romania

Russian Federation

San Marino

Serbia

Slovak Republic

Slovenia

Spain

Sweden

Switzerland

The former Yugoslav

Republic of Macedonia

Turkey

Ukraine

United Kingdom

Sub-total

Total

228

Total

222

829

Total

2/3

P1-1

P1-2

P1-3

P1-4

134

153

Annual Report 2016

135 13

106

194 71

286 176 106 40

Statistics

993 *

This table has been generated automatically, using the conclusions recorded in the metadata for each judgment contained in HUDOC, the Court’s case-law database.

Other judgments: just satisfaction, revision, preliminary objections and lack of jurisdiction.

Cases in which the Court held there would be a violation of Article 3 if the applicant was removed to a State where he/she was at risk of ill-treatment.

Figures in this column may include conditional violations.

Four judgments are against more than one State: Lithuania and Sweden; Republic of Moldova and Russian Federation (two judgments); and Romania and Bulgaria.

Page 201

Annual Report 2016

VIOLATIONS BY ARTICLE AND BY RESPONDENT STATE (1959-2016)

cle n

rti

r A ntio ied

e r

Ot o nv be t

eC o

th ot t twi

ht he

tio

Rig unis

lec

fre

ion

Rig

r ty

Rig

tio

ti o

ina

rim

i sc

tio

ibi

tiv

eff

Rig

Rig sse

a n

tio

om cia

sio ce

ed sso

Fr e a

cie

om ht,

Fre tho ion riva

of relig r p

om d

ed an spe ife

Fr e

re l y l

t la

to ami

ith

Rig

a n nt w

nis

rce

din

t ri

ai r

ity

Rig

ry/

lib

sla

of r

on u

Rig ibiti abo

a ti

Pr rce

iol

a ti

ti g

itio

ing

ti v

rad

eff

n o nt

L a um a m e

I nh t r e

a ti

tio

ti g

ibi

tio

ti v

iva

eff – de

life

to f lif

Rig

rik

ts/

tle men g

y s dg di

dl t ju fin

i en

ou nts n

m ati g at

dg ol

Ju o vi indi n

n s f tio

en ola ents

m e vi

lea

Statistics

1959-2016

Total

Albania

Andorra

Armenia

Austria

Azerbaijan

Belgium

Bosnia Herzegovina

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Georgia

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Liechtenstein

Lithuania

Total

162

Total

355

Total

139

2/3

265

272

131

276

100

179

282

102

511

290

1,190

156

170

235

P1-1

359

P1-2

P1-3

P7-4

Page 202

256

362

118

122

164

229

557

614

282

349

185

223

139

186

722

985

186

305

828

926

428

448

2,351

1,791

123

103

140

cle

rti on

r A ti d

he en rie

Ot onv be t

eC o

th ot t twi

ht he

Rig unis ecti

fre

ion

Rig

r ty

Rig

tio

ti o

ina

rim

i sc

tio

ibi

tiv

eff

Rig

Rig ssem

a n

tio

om cia

sio ce

ed sso

Fr e a

cie

om ht,

Fre tho ion riva

of relig r p

om d ct

ed an spe life

Fr e

re l y

t la

to ami

ith

Rig

an nt w

nis

rce

din

tr i

ai r

ity

Rig

ry/

lib

sla

of r

on u

Rig ibiti abo

ion

Pr orce olat

a ti

ti g

itio

ti v

tr e

eff

ing

a ti

tio

Inh

ti g

ibi

tio

ti v

iva

eff – de

life

La t to f life

Rig

rik

ts/

m ts

tle men g

y s dg di

dl t ju fin

ien ou nts n

m ati g at

dg ol

Ju o vi indi n

n s f tio

en ola ents

m e vi

lea

1959-2016

Luxembourg

Malta

Republic of Moldova

Monaco

Montenegro

Netherlands

Norway

Poland

Portugal

Romania

Russian Federation

San Marino

Serbia

Slovak Republic

Slovenia

Spain

Sweden

Switzerland

The former Yugoslav

Republic of Macedonia

Turkey

Ukraine

United Kingdom

Sub-total

Total

123

Total

104

633

270

133

482

298

204

708

135

206

612

314

157

1,864

165

208

733

2/3

300

114

816

124

106

426

715

435

139

129

193

202

262

421

110

149

440

265

P1-1

106

466

548

P1-2

P1-3

P7-4

118

307

339

157

1,125

944

249

328

1,283

1,147

1,948

1,834

136

153

309

346

319

341

151

149

102

172

133

118

Annual Report 2016

204

3,270

2,889

1,126

1,106

312

138

540

16,399 1,491 1,094

19,570 *

707

832

586

262

509

316

3,339 4,505 5,541

100

1,220

265

656

196

268

207

2,180

255

653

338

3,098

328

Statistics

Page 203

Annual Report 2016

Statistics

Page 204

1. Other judgments: just satisfaction, revision, preliminary objections and lack of jurisdiction.

2. Figures in this column may include conditional violations.

3. Figures in this column are available only from 2013.

* Including forty-one judgments which concern two or more respondent States: France and

Spain (1992), Turkey and Denmark (2001), Hungary and Greece (2004), Republic of Moldova

and Russian Federation (2004, 2011, 2012, 2015, 2 in 2016), Romania and Hungary (2005),

Georgia and Russian Federation (2005), Hungary and Slovak Republic (2006), Hungary and

Italy (2008), Romania and the United Kingdom (2008), Romania and France (2008), Albania

and Italy (2009, 2013), Montenegro and Serbia (2009, 2 in 2011, 2012), Cyprus and Russian

Federation (2010), Italy and France (2011), Greece and Belgium (2011), Poland and Germany

(2011), France and Belgium (2011), Switzerland and Turkey (2011), Italy and Bulgaria (2012),

San Marino and Italy (2012), Greece and Germany (2012), Armenia and Republic of Moldova

(2012), Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic

of Macedonia (2012, 2014), Poland and Greece (2013), Romania and Italy (2013), Italy and

Greece (2014), Russian Federation and Ukraine (2015), Slovenia and Austria (2015), and Belgium

and the Netherlands (2015), Lithuania and Sweden (2016), Romania and Bulgaria (2016).

Annual Report 2016

The year in pictures

Page 205

Chapter 7

The year in pictures

26 January 2016

Rosen Plevneliev,

President of Bulgaria,

on an official visit to

the Court and Guido

Raimondi, President

of the European Court

of Human Rights.

28 January 2016

Heiko Maas, Federal

Minister of Justice

and Consumer

Protection of

Germany, and

Guido Raimondi.

4 February 2016

Gilbert Saboya Sunyé,

Minister of Foreign

Affairs of Andorra,

and Guido Raimondi.

Annual Report 2016

The year in pictures

Page 206

4 March 2016

Silvia Fernández de Gurmendi, President of the International Criminal

Court, on an official visit to the Court, and Guido Raimondi.

22-24 March 2016

A delegation of the Supreme Court of India, headed by its Chief Justice, the Honourable

Shri Tirath Singh Thakur, took part in round-table discussions with judges of the Court

and members of the Registry. The delegation also met Gianni Buquicchio, President

of the Venice Commission, as well as other Departments of the Council of Europe

such as the Secretariat of the Parliamentary Assembly, the European Commission

for the Efficiency of Justice (CEPEJ) and the European Committee for the Prevention

of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

Annual Report 2016

The year in pictures

Page 207

20 April 2016

Heinz Fischer,

President of

Austria, and

Guido Raimondi.

21 April 2016

Maria Elena Boschi,

Italian Minister

for Constitutional

Reforms and

Relations with the

Parliament, and

Guido Raimondi.

20 May 2016

Philippe

Narmino, Minister

Plenipotentiary,

Director of

Judicial Services,

President of the

Conseil d’État

Monaco, and

Guido Raimondi.

Accompanied

by a delegation,

Philippe Narmino

also met

Philippe Boillat,

Director General

of the Human Rights and Rule of Law Directorate General, and had talks

with other Council of Europe bodies, including CEPEJ and the CPT.

Annual Report 2016

The year in pictures

Page 208

3 June 2016

Laurent Fabius,

President of the

French

Conseil

constitutionnel,

and Guido

Raimondi.

22 June 2016

Taavi Rõivas,

Prime Minister

of Estonia, on an

official visit to

the Court, and

Guido Raimondi.

22 June 2016

Alexis Tsipras,

Prime Minister

of Greece, and

Guido Raimondi.

Annual Report 2016

The year in pictures

Page 209

30 August 2016

A delegation of the Constitutional Court of Bosnia and Herzegovina, headed

by its President, Mirsad Ćeman, visited the Court and took part in round-table

discussions with judges of the Court and members of the Registry.

15 September 2016

Olemic Thommessen, President of the Parliament of Norway, accompanied by the judge

Erik Møse (Norway), Ms Ingrid Schou, Member of the Parliament of Norway, Ms Astrid

Emilie Helle, Ambassador and Permanent Representative of Norway, and Guido Raimondi.

Annual Report 2016

The year in pictures

Page 210

3 October 2016

Zoran Pažin, Minister of Justice of Montenegro, accompanied by the judge

Nebojša Vučinić (Montenegro), Ms Božidarka Krunić, Ambassador and

Permanent Representative of Montenegro, and Guido Raimondi. Françoise

Elens-Passos, Deputy Registrar, also attended the meeting.

4 October 2016

Pavlo Petrenko,

Minister of Justice

of Ukraine, and

Guido Raimondi.

Annual Report 2016

The year in pictures

Page 211

11 October

2016

François Hollande,

the French

President, and

Guido Raimondi.

13 October

2016

The Estonian

President, Kersti

Kaljulaid, with

judge Julia

Laffranque

(Estonia), and

Guido Raimondi.

7 November

2016

Erna Solberg,

Prime Minister

of Norway,

and Guido

Raimondi.

Annual Report 2016

The year in pictures

Page 212

7 November 2016

Delegations from German-speaking Superior Courts and Guido Raimondi. The delegations

were from the Court of Justice of the European Union, headed by its President, Koen

Lenaerts, the Liechtenstein State Court, headed by its President, Marzell Beck, the

German Constitutional Court, headed by its President, Andreas Voßkuhle, the Swiss

Federal Court, headed by its President, Gilbert Kolly, and the Austrian Constitutional

Court, headed by its Vice-President, Brigitte Bierlein. The delegations took part in round-

table discussions with judges Angelika Nußberger, Section President (Germany), Helen

Keller (Switzerland), Carlo Ranzoni (Liechtenstein), Georges Ravarani (Luxembourg),

Gabriele Kucsko-Stadlmayer (Austria), and Tim Eicke (the United Kingdom).

14 November

2016

Jean-Jacques

Urvoas, Keeper

of the Seals,

Minister of Justice

of France, and

Guido Raimondi.

Annual Report 2016

The year in pictures

Page 213

18 November

2016

Guido Raimondi

paid an official

visit to the

Netherlands. On

that occasion,

he was granted

an audience

with His Majesty

the King of the

Netherlands,

Willem-Alexander.

14 December

2016

On an official visit

to Portugal, Guido

Raimondi met

the Portuguese

President,

Marcelo Rebelo

de Sousa.

UUI, Alm.del - 2017-18 - Endeligt svar på spørgsmål 329: Spm. om, hvornår blev Udenrigsministeriet første gang bekendt med dommen fra den Europæiske Menneskerettigheds Domstol, til udenrigsministeren UUI, Alm.del - 2017-18 - Endeligt svar på spørgsmål 329: Spm. om, hvornår blev Udenrigsministeriet første gang bekendt med dommen fra den Europæiske Menneskerettigheds Domstol, til udenrigsministeren UUI, Alm.del - 2017-18 - Endeligt svar på spørgsmål 329: Spm. om, hvornår blev Udenrigsministeriet første gang bekendt med dommen fra den Europæiske Menneskerettigheds Domstol, til udenrigsministeren

he Annual Report of the European Court of

Human Rights provides information on the

organisation, activities and case-law of the Court.

The Annual Report 2016 contains an outline of the

events that marked the year and of their impact

on the Court and its work, the speeches delivered

at the start of the judicial year, an overview by

the Directorate of the Jurisconsult of the main

developments in the case-law, information on the

Court’s communication and outreach programme and

statistical data on the Court’s workload and output.

Key to the effectiveness of the Convention system is

the principle of subsidiarity, and renewed and extended

dialogue with other judicial bodies, in particular national

Superior Courts, was a prominent theme in 2016. There

were also important developments in the case-law with

a total of twenty-seven Grand Chamber judgments on

a wide range of highly topical issues, including mass

migration and the rights of suspected terrorists.

The Court’s Annual Reports and other materials about

the work of the Court and its case-law are available to

download from the Court’s website (www.echr.coe.int).

The European Court of Human Rights is an international

court set up in 1959 by the member States of the

Council of Europe. It rules on individual or State

applications alleging violations of the rights set out in

the European Convention on Human Rights of 1950.

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