Grand Chamber judgment in an inter-State case
In the case of Ukraine v. Russia (re Crimea) the Court has found multiple violations of the European Convention.
The case concerned the Ukrainian Government’s allegations of human-rights violations that had been part of a campaign of repression since early 2014 in Crimea, which included in particular disappearances; ill-treatment; unlawful detention; impossibility to opt out of Russian citizenship; suppression of Ukrainian media and of the Ukrainian language in schools; pre-trial detention in overcrowded conditions; prosecution and conviction on fabricated charges in reprisal for any pro-Ukrainian stance; discrimination against Crimean Tatars; and, transfers from Crimea to prisons in Russia.
The Court considered that it had enough evidence to conclude beyond reasonable doubt that the incidents had been sufficiently numerous and interconnected to amount to a pattern or system of violations. Moreover, the apparent lack of an effective investigation into the incidents and/or the general application of the measures to all people concerned, among other things, proved that such practices had been officially tolerated by the Russian authorities.
Chamber News
In the case of the National Youth Council of Moldova v. the Republic of Moldova the Court held that there had been a violation of the right to freedom of expression.
The case concerned the local authorities’ refusal to allow the applicant NGO to display anti-discrimination illustrations on advertising panels, on the grounds that they depicted some social groups in an undignified and humiliating manner.
The Court noted that the applicant NGO’s poster was part of an anti-discrimination campaign involving several other NGOs, one of the aims of which was to promote the first freephone discrimination helpline in Moldova. The central issue in the present case was the applicant NGO’s decision to illustrate its poster with cartoons. On that point, the Court reiterated that satire was a form of artistic expression and social commentary which naturally aimed to provoke and agitate, thereby contributing to public debate. The cartoons on the poster had been accompanied by text encouraging the communities concerned to call a freephone helpline if they experienced discrimination. It was obvious for the Court that the intended goal had not been to insult, ridicule or stigmatise those vulnerable population groups or insidiously to promote hate speech and intolerance.
In the case of Z v. the Czech Republic the Court held that there had been a violation of the right to prohibition of inhuman or degrading treatment and of the right to respect for private life.
In this case, the applicant complained that she had been subjected to non-consensual sexual acts by a priest. More specifically, she complained of the authorities’ restrictive interpretation of the constituent elements of the offences of rape and sexual abuse under Criminal Code then in force, of the fact that this legal framework had not been sufficient to ensure effective punishment for the sexual offences allegedly perpetrated against her and of the lack of an effective investigation.
The Court found that the authorities’ approach had been incapable of affording the applicant adequate protection and considered that the Czech State had failed to fulfil its positive obligations, which had required the effective application of a criminal-law system capable of punishing the non-consensual sexual relations alleged by the applicant.
In the case of Daniel Karsai v. Hungary the Court held that there had been no violation of the right to respect for private and family life and no violation of the right to prohibition of discrimination.
The case concerned the question of the asserted right to self-determined death of the applicant, who is a Hungarian national and has advanced amyotrophic lateral sclerosis (ALS) - a type of motor neurone disease with no known cure. He would like to be able to decide when and how to die before his illness reaches a stage that he finds intolerable. He would need assistance, but anyone assisting him would risk prosecution, even if he died in a country which allowed physician-assisted dying. He complained of not being able to end his life with the help of others and of discrimination compared to terminally ill patients on life-sustaining treatment who are able to ask for their treatment to be withdrawn.
The Court observed that there were potentially broad social implications and risks of error and abuse involved in the provision of physician-assisted dying. Despite a growing trend towards its legalisation, the majority of the member States of the Council of Europe continue to prohibit both medically assisted suicide and euthanasia. The State thus had wide discretion in this respect, and the Court found that the Hungarian authorities had not failed to strike a fair balance between the competing interests at stake and had not overstepped that discretion.
As regards the alleged discrimination, the Court found that the refusal or withdrawal of treatment in end-of-life situations was intrinsically linked to the right to free and informed consent, rather than to a right to be helped to die, and was widely recognised and endorsed by the medical profession, and also laid down in the Council of Europe’s Oviedo Convention. Furthermore, refusal or withdrawal of life-support was allowed by the majority of the member States. The Court therefore considered that the alleged difference in treatment of the two categories was objectively and reasonably justified.
In the case of Kokëdhima v. Albania the Court held that there had been no violation of the right to free elections.
The case concerned the decision to remove the applicant from office as a Member of Parliament because of a conflict of interest with his ownership of a company that received income from public resources.
The Constitutional Court had taken particular issue with the fact that the applicant had only sold the shares in his company more than six months after his election. The ECHR could not find anything arbitrary or manifestly unreasonable in that approach. Moreover, the applicant had to have known about the applicable laws and practice in his case and therefore could have foreseen that continuing to benefit from income generated from contracts with public authorities in his new role as an MP would amount to a conflict in interest.
Forthcoming Judgments & Decisions
Grand Chamber News
On 28 June 2024 the Court decided to refuse the request for an advisory opinion submitted by the High Court of Cassation and Justice of Romania.
The High Court had requested the ECHR to give an opinion on two questions concerning the interpretation of Article 6 (right to a fair hearing) of the Convention and Article 1 of Protocol No. 1 (protection of property) to the Convention. The Court decided not to accept the request, considering that it did not concern a question of principle, within the meaning of Article 1 § 1 of Protocol No. 16, warranting examination by the Court’s Grand Chamber. The Court’s case-law was well developed with regard to the questions asked, and several aspects of that case-law were judiciously cited by the requesting court in its decision to refer the matter to the Court.
The Chamber to which the case R.A. and Others v. Poland had been allocated has relinquished jurisdiction in favour of the Grand Chamber.
The case concerns a group of 32 Afghan nationals who claim to have fled Afghanistan after the Taliban came to power. They were left stranded in a makeshift camp on the border between Belarus and Poland from 8 August until 23 October 2021.
Hearings
The Court held a Grand Chamber hearing in the case of Ukraine and the Netherlands v. Russia.
This Inter-State case covers complaints concerning the Russian military operations in Ukraine since 24 February 2022 and the conflict in eastern Ukraine involving pro-Russian separatists which began in 2014, including the downing of Flight MH17.
Decisions
The Court declared the application in the case of Büttner and Krebs v. Germany inadmissible.
The case concerned the planning permission for the construction of the Berlin Brandenburg Airport. The applicants, who owned property near the airport, unsuccessfully challenged the planning decision in the German courts. They alleged that the authorities knowingly provided incorrect information about the projected flight paths during the planning approval procedure. The applicants, whose property is situated on the diverged flight paths, alleged that they had only realised after planning permission had been granted that the noise impact on their properties would be far greater than they had originally thought.
The applicants complained that they had not had access to all the relevant information on the projected flight paths and noise impact of the airport, meaning that they had been unable to effectively challenge the planning decision. They also complained that the German courts had considered as irrelevant certain procedural shortcomings, namely the authorities’ failure to display plans in all the municipalities that were going to be affected by aircraft noise from the new airport and to include in the assessment of the airport’s environmental impact the areas that would be affected by the revised routes.
The Court agreed with the national courts’ assessment of the applicants’ case, which had been thoroughly examined in court proceedings that had provided all necessary safeguards. It notably agreed with the courts’ finding that the rights at stake had been correctly balanced in the planning decision and that, although there had been certain procedural shortcomings, the outcome would not in any event have been more favourable to the applicants. In particular, although the flight paths ultimately used had been different to the ones outlined in the planning decision, the noise impact affected a broadly similar amount of people.
The Court declared the applications in the cases of Prinari v. Italy, Cotena v. Italy, Rotolo v. Italy and Gelsomino v. Italy inadmissible.
The cases concerned the rejection of the applicants’ separate applications to the Italian authorities for a reduction in their life sentences to 30 years’ imprisonment within proceedings for the review of the enforcement order relating to their sentences (incidente di esecuzione).
The Court found that the applicants had attempted to use reviews of enforcement orders to have their sentences changed by the Italian courts. They had incorrectly believed that the six-month timelimit had run from the decisions in that regard. The Court ruled that as that had been an ineffective remedy, earlier decisions in their cases before other courts had to be considered the “final” ones. Given that the applications had been lodged more than six months after these decisions, the Court held that they had been lodged out of time.
The Court declared the applications in the case of Morabito and Others v. Italy inadmissible.
The case concerned doctors who had attended specialisation courses between 1982 and 1991; they complained of the Italian authorities’ delayed transposition of an EU Directive into national law, and alleged, more specifically, that they had not received the “appropriate remuneration” that the member States of the European Union had been required to pay under the Directive.
The Court found that the contested difference in economic treatment had been a direct consequence of the difference in the number of hours worked per year by the applicants compared to the other doctors concerned. This case follows on from the Ruggeri and Others v. Italy decision concerning doctors who attended specialisation courses after 1991.
The Court has declared the application in the case Amar v. France inadmissible.
The case concerned disciplinary proceedings against the applicant, who at the relevant time had been Deputy Prosecutor at the National Public Prosecutor’s Office for Financial Offences (“PNF”). In that capacity, he had worked on several cases concerning former French President Nicolas Sarkozy, including on a charge of bribing a member of the Court of Cassation. On 26 March and 21 April 2021 the Prime Minister lodged a disciplinary complaint against the applicant with the Judicial Service Commission (Conseil supérieur de la magistrature, “CSM”), alleging that he had breached his ethical obligations.
In the case of Mikyas and Others v. Belgium, the Court has, by a majority, declared the application inadmissible. The decision is final.
The case concerned three young women who identify as Muslims. They complained that they were unable to wear the Islamic headscarf in their secondary schools (except during religious education classes), following the prohibition on wearing any visible symbols of one’s beliefs in the official education system of the Flemish Community.
In the case of Chelleri and Others v. Croatia the Court declared the applications inadmissible.
The case concerned the applicants’ (all fishermen) convictions for minor offences by the Croatian courts for activities in maritime waters claimed both by Croatia and Slovenia.
In the case of Gernelle and S.A. Société d’Exploitation de l’Hebdomadaire Le Point v. France, the Court has unanimously declared the application inadmissible.
The case concerned a complaint about telephone tapping, ordered in criminal proceedings, by persons who had not been parties to those proceedings, in so far as they had been concerned by the interceptions.
Other News
On 27 June 2024, Levan Ioseliani, Public Defender of Georgia, visited the Court and was received by President Síofra O’Leary. Lado Chanturia, Judge elected in respect of Georgia, and Abel Campos, Deputy Registrar of the Court, also attended the meeting.
On 27 June 2024, Shalten Hato, Minister of Justice of Curaçao, visited the Court and was received by President Síofra O’Leary. Jolien Schukking, Judge elected in respect of the Netherlands, and Abel Campos, Registrar of the Court, also attended the meeting.