Information Note on the Court's case-law

26 Pages·2010·0.84 MB·English

Information Note
on the Court’s case-law
No. 132 July 2010
COUNCIL CONSEIL
OF EUROPE DE L'EUROPE
The Information Note, compiled by the Court’s Case-Law Information and Publications Division, contains summaries of cases
examined during the month in question which the Registry considers as being of particular interest. The summaries are not binding
on the Court. In the provisional version the summaries are normally drafted in the language of the case concerned, whereas the final
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Convention on Human Rights, namely the decisions, judgments and advisory opinions of the Court, the reports of the European
Commission of Human Rights and the resolutions of the Committee of Ministers.
European Court of Human Rights
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ISSN 1996-1545
© Council of Europe, 2010
Table of conTenTs
aRTIcle 2
life
Criminal conviction for destroying fields of genetically modified crops: inadmissible
Hubert Caron and Others v. France - 48629/08 (dec.) .................................................................... 7
aRTIcle 3
Inhuman treatment
Domestic compensation considerably lower than minimum awarded by Court in cases concerning
inhuman treatment: violation
Ciorap v. Moldova (no. 2) - 7481/06 ............................................................................................. 7
Inhuman or degrading punishment
extradition
Extradition orders entailing risk of effective detention for life and virtual solitary confine ment for
lengthy periods in US “supermax” facilities: admissible
Babar Ahmad and Others v. the United Kingdom - 24027/07, 11949/08 and 36742/08 (dec.) ........ 7
expulsion
Risk of ill-treatment in case of deportation to Afghanistan of a woman separated from her husband:
deportation would constitute violation
N. v. Sweden - 23505/09............................................................................................................... 7
aRTIcle 5
article 5 § 1 (b)
non-compliance with a court order
secure fulfilment of obligation prescribed by law
Disproportionate detention for failure to pay amount due for breach of bail conditions: violation
Gatt v. Malta - 28221/08 .............................................................................................................. 8
aRTIcle 6
article 6 § 1 (civil)
applicability
Proceedings challenging the recording of the applicant’s name in a secret police file and the withdrawal
of firearms licence: Article 6 applicable
Užukauskas v. Lithuania - 16965/04 ............................................................................................. 9
article 6 § 1 (criminal)
applicability
Assize court refusal to hold new trial following re-examination of case-file pursuant to judgment of
European Court: inadmissible
Öcalan v. Turkey - 5980/07 (dec.) ................................................................................................ 10
3
European Court of Human Rights / Information Note no. 132 – July 2010
article 6 § 2
Presumption of innocence
Refusal to award compensation for pre-trial detention because applicant acquitted for lack of evidence:
violation
Tendam v. Spain - 25720/05 ....................................................................................................... 10
aRTIcle 7
article 7 § 1
Nullum crimen sine lege
Conviction for supplying Iraqi authorities with chemical substance used to produce poisonous gas:
inadmissible
Van Anraat v. the Netherlands - 65389/09 (dec.) .......................................................................... 11
aRTIcle 8
Private and family life
Failure to regulate residence of persons who had been “erased” from the permanent residents register
following Slovenian independence: violation
Kurić and Others v. Slovenia - 26828/06...................................................................................... 12
Prolonged failure to register marriage concluded abroad: violation
Dadouch v. Malta - 38816/07 ..................................................................................................... 12
Criminal conviction for destroying fields of genetically modified crops: inadmissible
Hubert Caron and Others v. France - 48629/08 (dec.) .................................................................. 13
family life
Order for return of child with mother to father’s country of residence from which it had been wrongly
removed: forced return would constitute violation
Neulinger and Shuruk v. Switzerland - 41615/07 ......................................................................... 14
Authorities’ refusal, for five years, to assign asylum-seekers to the same canton as their spouses, so
they could live together: violation
Mengesha Kimfe v. Switzerland - 24404/05
Agraw v. Switzerland - 3295/06 ................................................................................................. 15
aRTIcle 10
freedom of expression
Conviction for defamation following publication of a book in which a former defendant described
his own trial: violation
Roland Dumas v. France - 34875/07 ........................................................................................... 16
freedom to impart information
Virtually automatic conviction of media professionals for publishing written material of banned
organisations: violation
Gözel and Özer v. Turkey - 43453/04 and 31098/05 .................................................................... 17
4
European Court of Human Rights / Information Note no. 132 – July 2010
aRTIcle 14
Discrimination (article 5)
Differences in procedural requirements for early release depending on length of sentence: violation
Clift v. the United Kingdom - 7205/07 ........................................................................................ 17
Discrimination (article 8)
Publications allegedly insulting to the Roma community: no violation
Aksu v. Turkey - 4149/04 and 41029/04 ...................................................................................... 18
aRTIcle 34
Victim
Domestic compensation considerably lower than minimum awarded by Court in cases concerning
inhuman treatment: victim status upheld
Ciorap v. Moldova (no. 2) - 7481/06 ........................................................................................... 19
Hinder the exercise of the right of petition
Inability of an asylum-seeker in a detention centre to hold meetings with a lawyer despite the
indication of an interim measure by the European Court: violation
D.B. v. Turkey - 33526/08 .......................................................................................................... 20
Intimidation and pressurising of applicant by authorities in connection with case before the European
Court: violation
Lopata v. Russia - 72250/01 ........................................................................................................ 20
aRTIcle 35
article 35 § 3
no significant disadvantage
Complaint concerning inability to recover a judgment debt worth less than one euro: inadmissible
Korolev v. Russia - 25551/05 (dec.) .............................................................................................. 21
aRTIcle 46
execution of a judgment
Assize court refusal to hold new trial following re-examination of case-file pursuant to judgment of
European Court: inadmissible
Öcalan v. Turkey - 5980/07 (dec.) ................................................................................................ 22
execution of a judgment – Measures of a general character
Respondent State required to take general measures to remedy depreciation of compen sation for
expropriation
Yetiş and Others v. Turkey - 40349/05 .......................................................................................... 23
Respondent State required to enact appropriate legislation regulating residence of persons who had
been “erased” from the permanent residents register following Slovenian independence
Kurić and Others v. Slovenia - 26828/06...................................................................................... 23
execution of a judgment – Individual measures
Respondent State required to issue applicants retroactive residence permits
Kurić and Others v. Slovenia - 26828/06...................................................................................... 23
5
European Court of Human Rights / Information Note no. 132 – July 2010
aRTIcle 1 of PRoTocol no. 1
Peaceful enjoyment of possessions
Refusal to award compensation for loss or deterioration of property seized in criminal proceedings:
violation
Tendam v. Spain - 25720/05 ....................................................................................................... 23
Deprivation of property
Unlawful distribution of assets of private bank by liquidator: case referred to the Grand Chamber
Kotov v. Russia - 54522/00 .......................................................................................................... 23
Disproportionate burden on applicants resulting from depreciation of compensation for expro priation
between date of assessment and date of settlement, with no default interest: violation
Yetiş and Others v. Turkey - 40349/05 .......................................................................................... 24
aRTIcle 3 of PRoTocol no. 1
Vote
Failure for more than thirty years to introduce legislation giving practical effect to expatriates’
constitutional right to vote in parliamentary elections from overseas: violation
Sitaropoulos and Giakoumopoulos v. Greece - 42202/07 ................................................................ 25
oTHeR MaTTeRs
european agreement relating to Persons Participating in Proceedings of the european court of
Human Rights
Request for waiver in domestic proceedings of Government Agent’s immunity under the European
Agreement: request rejected
Albertsson v. Sweden - 41102/07 (dec.) ........................................................................................ 26
RefeRRal To THe GRanD cHaMbeR .................................................................................... 26
6
European Court of Human Rights / Information Note no. 132 – July 2010
ARTICLE 2 provided it was reducible, they argue that none of
the ways a sentence can be reduced in the United
States meet that test in practice. They also allege
life
that, if convicted, all but the fourth applicant (who
suffers from a medical condition) would be liable
criminal conviction for destroying fields of
to serve their sentences (and possibly the rest of
genetically modified crops: inadmissible
their lives) in a “supermax” high-security facility
(ADX Florence). They say that conditions in such
Hubert Caron and Others v. France - 48629/08
facilities are stringent, with detainees facing a
Decision 29.6.2010 [Section V]
regime of virtual solitary confinement and signifi-
cant periods confined to their cells. In support of
(See Article 8 below – page 13)
their claims, they have produced a report by a
psychiatrist which states that, while a “supermax”
prison regime does not amount to sensory depriv-
aRTIcle 3
ation, there is an almost total lack of meaningful
human communication; this tends to induce a
Inhuman treatment range of psychological symptoms ranging from
panic to psychosis and emotional breakdown
within sixty days. They are concerned also that
Domestic compensation considerably lower
their situation may be compounded by the impos-
than minimum awarded by court in cases
ition of special administrative measures, involving
concerning inhuman treatment: violation
almost complete solitary confinement and restric-
Ciorap v. Moldova (no. 2) - 7481/06 tions on their communications and visiting rights.
Judgment 20.7.2010 [Section IV]
Admissible under Article 3 – detention in a
“supermax” prison (first, second and third appli-
(See Article 34 below – page 19) cants) and in respect of the possibility of life
imprisonment without parole (first, third and
Inhuman or degrading punishment fourth applicants) or of a lengthy fixed-term sen-
extradition tence (second applicant). Remaining complaints
inadmissible (manifestly ill-founded).
extradition orders entailing risk of effective
detention for life and virtual solitary confine- expulsion
ment for lengthy periods in Us “supermax”
facilities: admissible Risk of ill-treatment in case of deportation to
afghanistan of a woman separated from her
Babar Ahmad and Others v. the United Kingdom
husband: deportation would constitute violation
- 24027/07, 11949/08 and 36742/08
Decision 6.7.2010 [Section IV] N. v. Sweden - 23505/09
Judgment 20.7.2010 [Section III]
Facts – The four applicants are due to be extradited
from the United Kingdom to stand trial on Facts – The applicant and her husband are Afghan
terrorism charges in the United States after their nationals who arrived in Sweden in 2004. Their
appeals to the domestic courts against the Secretary requests for asylum were refused several times. In
of State’s orders for their extradition were dismissed. 2005 the applicant separated from her husband. In
Evidence has been produced to the European 2008 her request for a divorce was refused by the
Court which indicates that, if extradited, the first, Swedish courts as they had no authority to dissolve
third and fourth applicants will risk a term of life the marriage as long as the applicant did not reside
imprisonment with no possibility of parole, while legally in the country. Her husband informed the
the second applicant (who is thirty-five years old) court that he opposed a divorce. In the meantime,
faces a fifty-year sentence. Although the applicants the applicant unsuccessfully requested the Migration
accept that the Court’s judgment in the case of Board to re-evaluate her case and stop her deport-
Kafkaris v.  Cyprus ([GC], no.  21906/04, ation, claiming that she risked the death penalty in
12 February 2008, Information Note no. 105) is Afghanistan as she had committed adultery by
authority for the proposition that the imposition starting a relationship with a Swedish man and that
of a life sentence would not in itself violate Article 3 her family had rejected her.
Article 2 – Article 3 7
European Court of Human Rights / Information Note no. 132 – July 2010
Law – Article 3: The Court had to establish whether impunity. There were no strong reasons to question
the applicant’s personal situation was such that her the veracity of the applicant’s statement that she
return to Afghanistan would contravene Article 3. had had no contact with her family for almost five
Women were at particular risk of ill-treatment in years and therefore no longer had a social network
Afghanistan if perceived as not conforming to the or adequate protection in Afghanistan. In the
gender roles ascribed to them by society, tradition special circumstances of the present case, there were
and even the legal system. The United Nations substantial grounds for believing that if deported
High Commissioner for Refugees had observed to Afghanistan, the applicant would face various
that Afghan women, who had adopted a less cumulative risks of reprisals from her husband, his
conservative lifestyle, such as those returning from family, her own family and from the Afghan society
exile in Iran or Europe, continued to be perceived which fell under Article 3.
as transgressing entrenched social and religious
Conclusion: deportation would constitute a
norms and might, as a result, be subjected to
violation (unanimously).
domestic violence and other forms of punishment
ranging from isolation and stigmatisation to
honour crimes for those accused of bringing shame
aRTIcle 5
on their families, communities or tribes. As the
applicant had resided in Sweden since 2004, she
might be perceived as not conforming to the article 5 § 1 (b)
gender roles ascribed to her by Afghan society.
Moreover, she had attempted to divorce her
non-compliance with a court order
husband and had demonstrated a real and genuine
secure fulfilment of obligation prescribed by
intention of not living with him. However, if the
law
spouses were deported to Afghanistan, separately
or together, the applicant’s husband might decide
Disproportionate detention for failure to pay
to resume their married life together against her
amount due for breach of bail conditions:
wish. The new Shiite Personal Status Law required,
violation
inter alia, women to comply with their husbands’
sexual requests and to obtain permission to leave
Gatt v. Malta - 28221/08
the home, except in emergencies. According to
Judgment 27.7.2010 [Section IV]
various human-rights reports on Afghanistan, up
to 80% of Afghan women were affected by
Facts –The applicant, who had been charged with
domestic violence, the authorities did not prosecute
drug-trafficking, was granted bail subject to his
in such cases and the vast majority of women
providing a personal guarantee of approximately
would not even seek help. To approach the police
EUR 23,000 and with restrictions on his leaving
or a court, a woman had to overcome the public
his place of residence. Following a complaint that
opprobrium affecting women who left their houses
he had breached his curfew, the criminal court
without a male guardian. The Court could not
revoked his bail, and ordered his arrest and the
ignore the general risk indicated by statistics and
payment of the guarantee. As he was unable to pay,
international reports. As regards the applicant’s
proceedings were brought under Articles 585
extramarital relationship, she had failed to submit
and 586 of the Criminal Code and the guaranteed
any relevant and detailed information to the
sum was converted into detention at the rate of
Swedish authorities. Nevertheless, should her
one day per EUR 11.50. In total, this amounted
husband perceive the applicant’s filing for divorce
to two thousand days’ (more than five years and
or other actions as an indication of an extramarital
six months’) imprisonment. The applicant brought
relationship, adultery was a crime under the Afghan
a constitutional complaint which was ultimately
Penal Code. Should the applicant succeed in living
dismissed.
separated from her husband in Afghanistan,
women without male support and protection faced Law – Article 5 § 1 (b): In so far as the Government
limitations on conducting a normal social life, had claimed that the detention in the applicant’s
including the limitations on their freedom of case fell under the first limb of Article 5 § 1 (b),
movement, and lacked the means of survival, the Court held that in such circumstances issues
which prompted many to return to abusive family such as the purpose of the court order, the feasibility
situations. The results of such “reconciliation” were of complying with it and the duration of the
generally not monitored and abuse or honour detention were matters to be taken into consider-
crimes upon return were often committed with ation. Moreover, proportionality assumed particu-
8 Article 3 – Article 5 § 1 (b)
European Court of Human Rights / Information Note no. 132 – July 2010
lar significance in the overall scheme of things. The Facts – The applicant held a firearms licence which
Court considered that the applicant, who had been was revoked by the Lithuanian authorities on the
under strict bail conditions for nearly five years – ground that he was listed in the operational records
presumably without being able to earn a living – file compiled by law-enforcement officers which
could not realistically have been expected to contained information about his alleged risk to
comply with the court order to secure payment in society. He was required to hand in his arms to the
the amount due. Bearing in mind the relatively police in return for payment. He challenged the
entry of his name in the operational records file in
shorter periods of detention in other similar cases
the domestic courts, which, however, dismissed his
it had examined previously, the Court found that
action on the basis of classified material submitted
the duration of the detention imposed for a single
by the police, without disclosing it to the applicant.
breach of curfew could not be considered to have
struck a fair balance between the importance of Law – Article 6 § 1
securing compliance with a lawful court order and
(a) Applicability – There could be little doubt that
the importance of the applicant’s right to liberty.
the information contained in the operational
In so far as the Government claimed that the
records file had had an impact on the applicant’s
detention fell within the second limb of Article 5
reputation, which merited protection under
§ 1 (b) of the Convention, the Court found that
domestic law and fell within the scope of Article 8
Maltese law and its application in the applicant’s
of the Convention. Likewise, when information
case had been deficient in two aspects. Firstly, the
about a person’s life, including, inter alia, his
law had made no distinction between a breach of criminal record, was systematically collected and
bail conditions related to the primary purpose of stored in a file held by State agents, that information
bail (namely, appearance at the trial) and other fell within the scope of “private life” for the pur-
considerations of a less serious nature, such as a poses of Article 8. The Court could not rule out
curfew. Secondly, it had not applied a ceiling on the possibility, albeit theoretical, that the listing of
the duration of the detention, or made any assess- the applicant’s name in the operational records file
ment of proportionality. In sum, the domestic law could have resulted in restrictions on him entering
as applied in the applicant’s case had failed to strike certain private-sector professions or otherwise
a balance between the importance in a democratic earning a living, thereby again affecting his private
society of securing the fulfilment of the obligation life. Indeed, under domestic law, certain professions,
in question and the importance of the right to such as that of security officers, were not accessible
liberty. to persons who had been listed in an operational
records file. Lastly, as the applicant had been
Conclusion: violation (unanimously).
required to hand in the guns, albeit in return for
Article 41: Reserved. Given the nature of the viola- payment, there could be little doubt that this had
tion, the respondent State should give consideration involved an interference with the right to the
to securing the applicant’s immediate release from protection of property. Article 6 § 1 was therefore
applicable to the impugned proceedings under its
detention in so far as it is based on the criminal
civil head.
court’s decision applying Articles 585 and 586 of
the Criminal Code. (b) Merits – In order to determine whether or not
the applicant had been involved in a criminal
activity, it had been necessary for the judges to
aRTIcle 6
examine a number of factors, including the reason
for the police operational activities and the nature
and extent of the applicant’s suspected participation
article 6 § 1 (civil)
in the alleged crime. Had the defence been able to
persuade the judges that the police had acted
applicability without good reason, the applicant’s name would
have been removed from the operational records
Proceedings challenging the recording of the file. The data in that file was, therefore, of decisive
applicant’s name in a secret police file and the importance to the applicant’s case. More import-
withdrawal of firearms licence: Article 6 applicable antly, as the domestic courts’ decisions showed, the
operational records file had been the only evidence
Užukauskas v. Lithuania - 16965/04 of the applicant’s alleged danger to society. How-
Judgment 6.7.2010 [Section II] ever, Lithuanian law and judicial practice provided
Article 5 § 1 (b) – Article 6 § 1 (civil) 9
European Court of Human Rights / Information Note no. 132 – July 2010
that information containing State secrets could not the justice system that had led to the failure to
be used as evidence in court against a person unless return the seized items or to their loss in value. His
it had been declassified, and that it could not be application was dismissed under both heads. The
the only evidence on which a court based its applicant applied to the Audiencia Nacional for
decision. As the applicant had not been apprised judicial review of that decision but without success.
of the evidence against him or had the opportunity He subsequently lodged an appeal on points of law
to respond to it (unlike the police who had effect- with the Supreme Court and an amparo appeal
ively exercised such rights), the decision-making with the Constitutional Court, to no avail.
procedure had not complied with the requirements
Law – Article 6 § 2: In dismissing the applicant’s
of adversarial proceedings or equality of arms and
claim for compensation for his pre-trial detention,
had not incorporated adequate safeguards to
the Ministry had relied on the fact that he had been
protect the interests of the applicant.
acquitted on appeal for lack of sufficient evidence.
Conclusion: violation (unanimously). Such reasoning, without qualification or reserva-
tion, cast doubt on the applicant’s innocence. In
Article 41: EUR 3,500 in respect of non-pecuniary
making a distinction between an acquittal for lack
damage.
of evidence and an acquittal based on the finding
that the alleged offence had not been committed,
article 6 § 1 (criminal)
it had disregarded the applicant’s previous acquittal,
which had to be taken into account by any judicial
applicability authority regardless of the reasons given for the
criminal court’s decision. The national courts, for
their part, had simply endorsed the Ministry’s
assize court refusal to hold new trial following
reasoning without remedying the issue arising.
re-examination of case-file pursuant to judgment
of european court: inadmissible Conclusion: violation (unanimously).
Öcalan v. Turkey - 5980/07 Article 1 of Protocol No. 1: The seizure complained
Decision 6.7.2010 [Section II] of by the applicant had not been designed to
deprive him of his possessions but to prevent him
temporarily from using them. There was no
(See Article 46 below – page 22)
indication that it had lacked any basis in law.
Furthermore, it had pursued the aim of guaran-
article 6 § 2
teeing the satisfaction of any claims brought by
potential civil parties. After his acquittal, the
Presumption of innocence applicant had brought an action against the State
on account of the damage to or disappearance of
the seized items. In the record of the return of the
Refusal to award compensation for pre-trial
items, drawn up several months previously, he had
detention because applicant acquitted for lack
mentioned the problem and the clerk to the
of evidence: violation
investigating judge had noted that several items
Tendam v. Spain - 25720/05 were in a poor condition. It also appeared from the
Judgment 13.7.2010 [Section III] case file that certain seized items had been deposited
with third parties during the criminal investigation
Facts – Two sets of criminal proceedings were and had not subsequently been returned. Yet the
brought against the applicant. In the first set, he national authorities, and in the final instance the
was detained pending trial for 135 days, and was Supreme Court, had dismissed the applicant’s
subsequently convicted at first instance and claim on the ground that he had not proved that
acquitted on appeal. In the second set of pro- the seized items had disappeared or been damaged.
ceedings he was likewise acquitted and sought the In those circumstances, the Court considered that
recovery of possessions seized from him during the the burden of proof regarding the missing or
investigation. Although some of the items were damaged items had rested with the judicial
returned to him, he noticed that they were damaged authorities, which had been responsible for looking
and that others had disappeared. He applied to the after them throughout the duration of the seizure,
Ministry of Justice and the Interior for compen- and not with the applicant, who had been acquitted
sation, both for the damage resulting from his more than seven years after the items had been
pre-trial detention and for the malfunctioning of seized. Since, following the applicant’s acquittal,
10 Article 6 § 1 (civil) – Article 6 § 2