Crossing the red line: application of the ‘significant disadvantage’ criterion in an Article 5§3 case

Recently, Judges De Gaetano and Ziemele did not hide their bewilderment with the Latvian government’s argument in favor of the application of the ‘significant disadvantage’ admissibility criterion in the case of Bannikov v. Latvia. Continue reading

Should the Court fix leaking roof problems?

Is the roof of the house in which you own a flat leaking? Is there a delay in repairs? Do you have to repaint the walls? Is there a delay of enforcement of decisions that ordered the repairs? These now seem to be valid questions for your potential human rights violation.

In the case of Bjelajac v. Serbia the Court found a violation of Article 1 of Protocol No.1 due to unjustified delay in enforcing a national court’s ruling. The ruling in substance was about a leaking roof of a house in which the applicant owned a flat. Continue reading

The ‘significant disadvantage’ in a ‘20 million case’

In a recent case the Court used the ‘significant disadvantage’ criterion to declare a complaint inadmissible. In Liga Portuguesa de Futebol Profissional v. Portugal the Court made a clear distinction between the human rights issue at stake and the case at large (which concerned 20 million euros). Continue reading

Remembering the private and family lives of mentally disabled persons

In the case of Stanev v. Bulgaria the Grand Chamber gives hope for future developments in the Court’s approach towards the protection of private and family lives of mentally disabled people (Lycette Nelson from the Mental Disability Advocacy Center has also blogged about this case, read it here). Even though the majority did not find it necessary to examine Mr. Stanev’s complaint under Article 8, the dissenting opinions of four judges show that there are voices within the Court that consider that the institutionalization of mentally disabled persons has more aspects the Convention should protect. Continue reading

Ambit and Scope of Article 8 in Citizenship Cases

In a recent judgment in the case of Genovese v. Malta the Court gave very few words when determining the scope and ambit of Article 8. The Court managed to exclude a right, find no violation and determine the scope in the same sentence, and, in contrary to previous citizenship cases, did not give one word more to justify its decision. Continue reading

The right to bury one’s relatives

In a recent judgement in the case of Girard v. France  (in French) the Court recognized a new right under Article 8 – the right to bury one’s relatives. This case involved three aspects of dealing with an individual’s remains under the Convention: returning the body to relatives, organizing and attending a funeral, and treatment of samples taken from the body for investigation purposes. The Court had dealt with these issues separately before. The outcome was different when the issues got mixed.  Continue reading

Recognizing the right to conscientious objection – Part I – correcting a mistake

In the Grand Chamber judgment in the case of Bayatyan v. Armenia the Court recognized a right to conscientious objection under Article 9. The first step in doing so was to correct a mistake started by the European Commission of Human Rights (Commission) regarding the interpretation of Article 9 in conjunction with Article 4. Continue reading

Khodorkovskiy in a cage

In the case of Khodorkovskiy v. Russia the Court reaffirmed that placing a person in a cage during a trial if the person is not predisposed to violence or there are no serious security threats, is degrading and violates Article 3.

The Court noted that the practice of placing a criminal defendant in a sort of a “special compartment” in a court room existed and probably continues to exist in several European countries (Armenia, Moldova, Finland). In some countries (such as Spain, Italy, France or Germany) the accused are sometimes placed in a glass cage during the hearing. Such a practice has occasionally been examined in the context of the guarantee of the presumption of innocence under Article 6 § 2 of the Convention (see Auguste v. France, Meerbrey v. Germany). In recent years the Court has begun to examine the practice also from the standpoint of Article 3 of the Convention. Thus, in the case of Sarban v. Moldova the applicant was brought to court in handcuffs and held in a cage during the hearings, even though he was under guard and was wearing a surgical collar. A violation of Article 3 of the Convention was found in a case where the applicant was unjustifiably handcuffed during public hearings (see Gorodnichev v. Russia). Handcuffing of the applicant gave rise to a violation of Article 3 of the Convention also in a situation where no serious risks to security could be proved to exist (see Henaf v. France, Istratii and Others v. Moldova).

I was wondering whether the experience of a person when put in the cage is of such a degrading nature to be considered under Article 3? Continue reading

How significant is the ‘significant disadvantage” of the new admissibility criterion (Part II)?

It has been claimed[1] and it is also my understanding that human rights protect important aspects of a human life. The views on what are the important aspects may vary. The drafters of the Universal Declaration of Human Rights put in their views; inspired by the rights in the Declaration, the European Convention was composed, and States made an agreement that those are the aspects that should be protected by legally binding human rights. And finally, the Court does its job to interpret the rights and thus we find spheres in each right that are protected by the respective right. These spheres are often determined as rights within the existing broader rights of the Convention. Does the Court think about the general importance of the spheres in human life when developing the scope of rights? To my mind, it could be at least stronger on applying the importance criterion. Let’s take a look at a recent case decided by the Court – Golemanova v. Bulgaria. Continue reading

How significant is the ‘significant disadvantage’ of the new admissibility criterion (Part I)?

In its decisions in the cases of Holub v. the Czech Republic and Bratři Zátkové, a.s. v. the Czech Republic the Court has unanimously declared the applications inadmissible. The Court used the new admissibility criterion to determine that. Continue reading

The new powers of single judge formations and committees

“The year 2010, which was the sixtieth anniversary of the European Convention on Human Rights, has been an important year for the European Court of Human Rights,” writes the president of the Court, Jean-Paul Costa, in the foreword to the 2010 report.[1]

Indeed, Protocol 14 entered into force in June of last year, granting long-awaited new powers to the Court’s ‘bodies’ – single judge formations and committees – to help dealing with the increasing case-load.  Continue reading

The right to choose the circumstances of becoming a parent

In the end of last year the Court delivered a judgment in the case of Ternovszky v. Hungary. In this judgment the Court created a new right – the right to choose the circumstances of becoming a parent. I will not focus on the discussion about the safety of the mother and the child that is part of the factual part of the judgment but solely on the creation of the new right.

Continue reading

Hirst Strongly Resonates in Greens … and in Latvia

In what some have considered a “blunt ultimatum”, the Court has just given the United Kingdom a six-month deadline to introduce legislative proposals to amend its laws banning prisoners from voting. At the basis of the Court’s decision, is the government’s 5-year failure to execute the Grand Chamber judgment in Hirst (No. 2), the case concerning prisoners’ voting rights.

The lengthy delay to implement the Hirst judgment, the Court said this week in Greens and M.T. v. the United Kingdom, has resulted in around 2,500 new applications currently pending before the Court. The Court has warned that the number continues to grow with each election that passes noting that there are approximately 70,000 serving prisoners in the UK at any one time, all of whom are potential applicants. So at stake is not only the state’s responsibility under the Convention but also – and more fundamentally – the future effectiveness of the system which the Court rightly views as threatened by the UK government’s continuing non-compliance. Continue reading

Back-up plans in pilot-judgments?

The Court has delivered a pilot-judgment last week in the case of Maria Atanasiu and Others v. Romania. In completing the requirements of the pilot-judgment procedure the Court also decided to adjourn consideration of all the applications stemming from the same general problem for eighteen months from the date on which the present judgment becomes final, pending the adoption by the Romanian authorities of measures capable of offering adequate redress to all the persons affected.

As I understand, with the eighteen months limit the Court tries to ensure the access of the applicants to the Court in case the state doesn’t implement the general measures. In that event the Court will restart examining the cases that were adjourned. To my mind, it is nice that the Court is willing to take care of access concerns, but this praxis has some very negative aspects. Continue reading

A flight without passengers – new pilot judgment issued

The Court issued a pilot judgment last week in the case of Rumpf v. Germany. After reading the judgment it seems important to remind ourselves once more about the nature and objective of the pilot judgment procedure (PJP). It is described by Erik Fribergh, Registrar of the Court: “Rather than deal with these cases in the standard, individual way, the object of the procedure, right from the start, is to help create the conditions at national level in which all of these pending and potential claims can be settled. The specific feature of the PJP is that instead of dealing with each individual case, the Court singles out one or a small number of applications for priority treatment and adjourns all other applications until the pilot case has been decided.”[1] Continue reading

‘De minimis non curat praetor’ principle in the Court’s practice

The Court has recently issued an inadmissibility decision in the case of Korolev v. Russia invoking the new admissibility criterion, introduced with the entry into force of Protocol No.14 to the Convention on 1 June 2010.

The new admissibility criterion provides that applications are inadmissible where “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal(Article 35 paragraph 3 (b)). The purpose of the new admissibility criterion is, in the long run, to enable more rapid disposal of unmeritorious cases so as to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level.[1] More recently, the High Contracting Parties invited the Court to give full effect to the new admissibility criterion and to consider other possibilities of applying the principle de minimis non curat praetor – not to be concerned with petty cases.[2]

Continue reading

Deciding on the pilot judgment procedure

On 6 July 2010 a chamber judgment in the case of Yetis and Onthers v. Turkey has been issued by the Court’s second section finding a violation of Article 1 Protocol No 1. The Court observed that the violation it had found had originated in a systemic problem connected with the absence in Turkish law of a mechanism whereby the national courts could take account of the potential depreciation in the value of compensation awarded for expropriation, as a result of the combined effect of the length of proceedings and inflation. By finding this, the Court had the possibility to start the pilot judgment procedure. Continue reading

‘Unluxury problems’ of Europe

In a book published in 2003 Manfred Nowak wrote: “The OAS [Organization of American States] in comparison [with the Council of Europe] is composed of a wide range of states including both the richest industrialized countries (United States and Canada) and the poorest countries of the world (e.g. Haiti), as well as democracies and military dictatorships that covered a good part of the entire hemisphere in the 1970s. Consequently, the human rights bodies of the OAS have always had to deal with far more than Europe’s ‘luxury problems’, such as the excessive duration of legal proceedings in Italy. Historically, and presently, OAS human rights bodies are challenged by widespread poverty, systematic torture and assassination of political dissidents, enforced disappearances and much more.”[1]  

It is impossible to draw a distinction like that from the Court’s case-law of the year 2009. The Court found 269 violations of Article 2 and 3 plus 145 violations of those articles because of lack of effective investigations. This makes it 1/6 of all the violations the Court found that year.[2]  

  Continue reading

The chilling effect of 690, 000 euro

In the case of Handölsdalen Sami Village and Others v. Sweden the applicants argued that legal costs at a national level that amounted to 690, 000 euro were in breach of the right to access to court under Article 6.

The applicants were four Swedish Sami villages. The case concerned domestic proceedings about a disputed right of the Sami to use private land for winter grazing of their reindeer. Large numbers of landowners brought proceedings against villages, including the applicants, seeking to obtain a judgment forbidding them from using land without concluding a contract with the respective owner. The Sami villages contested the action. The District court found against the applicants. The court ordered the applicants to pay the landowners’ legal costs, amounting to approximately 400,000 euro. The applicants appealed. The court of appeal upheld the district court’s judgment and ordered the applicants to pay the landowners’ legal costs in the appeal proceedings, amounting to approximately 290,000 euro. The applicants appealed to the Supreme Court, which refused their leave to appeal.

In the proceeding before the Court in Strasbourg the applicants asserted that, given the high legal costs of the proceedings, they did not have an effective access to court. The applicants also stated that these costs can lead to bankruptcy of the villages. Continue reading

What is the European literary heritage?

In the case of Akdas v. Turkey the Court was called upon to decide on a seizure of a novel. But it turns out, this is not just a novel, it is something more.

The applicant published a Turkish translation of the erotic novel “Les onze mille verges” by the French writer Guillaume Apollinaire, which contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism or vampirism.

The applicant was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. The seizure and destruction of all copies of the book was ordered and the applicant was given a “heavy” fine – a fine that may be converted into days of imprisonment.

Continue reading