- Update
No. 15 -
Relevant
Case-Law of the European Court for the Protection of Human Rights and Fundamental Freedoms
(August
2000-December 2000)
(Summary of
Decisions & Judgements)
1. Court's
Judgements
Maaouia vs.
France (Appl. No. 39652, Judgement of 5 October 2000)
The applicant is a Tunisian
national
who entered France illegally in 1980. He was later sentenced to 6 years of
imprisonment for a criminal offence and released in 1990. In 1992, he married a
French national and while he was trying to regularise his stay he was notified
of an expulsion order issued in relation to his past criminal offence. He was
therefore sentenced to one year imprisonment and banned from French territory (interdiction
du territoire) for ten years for violating the expulsion order. However,
the expulsion order was cancelled in 1994 and the applicant sought also the
cancellation of the banishment order (relèvement de l'interdiction du
territoire).
He succeeded in 1998. The case before the Court was based on the fact that the
procedure in cancellation of the banishment order did not respect the 'reasonable
time'
requirement of Art. 6 of the ECHR. The whole debate before the Court
evolved around the issue of determining whether such a procedure could be
considered to involve a civil right or a criminal charge (Art. 6 para. 1). The Court
adopted a systemic approach of the Convention and noted that the fact that the
contracting parties introduced in Art. 1 of Protocol 7 specific
procedural guarantees concerning expulsion of foreigners indicates
that they did not consider these matters to be covered by Art. 6 para. 1 of the
ECHR. Based on this reasoning, the Court decided that the procedure in
cancellation of the banishment order could not be considered as involving civil
rights or criminal issues in the sense of Art. 6 para. 1 of the ECHR. More
specifically, the Court considered that the banishment from territory is not
a penal sanction but rather a public order measure (mesure de police des
etrangers)
and that the procedure in cancellation does not question the criminal
condemnation the banishment is based upon. The Court added that even if the
banishment from territory, decided in this case against the applicant, did have
an impact on his private and family life, this was not enough to attract the
protection of Art. 6 para. 1. Beyond the specific facts of this case, the
importance of the judgement lies in the fact that a Grand Chamber of the Court
has confirmed that Art. 6 para. 1 of the ECHR is not at all applicable to
expulsion procedures.
Judge Loucaides (Cyprus)
joined a dissenting opinion, whereby he argued that Art. 6 para. 1
is in fact applicable to procedures concerning the expulsion of foreigners. In
his view, the expression 'in the determination of his civil rights' should be
understood as including all non-criminal judicial procedures, involving
inter-individual disputes or disputes between the state and individuals.
According to Judge Loucaides, the provisions of the ECHR are to be interpreted
without reference to the meaning given by domestic law to similar legal
notions. The terms 'civil rights' in the ECHR are
autonomous and the Court could easily extend them to expulsion procedures. As
to Art. 1 Prot. 7, Judge Loucaides considers that it complements the judicial guarantees
of Art. 6 by providing administrative guarantees. So its object and purpose are
different from that of Art. 6.
2. Court's
Decisions
A. Cases
Declared Admissible
Zeki, Gulden
and Sinem Sen vs. the Netherlands (Appl. No. 31465/96, Decision of 7 November
2000)
The applicant is a Turkish
national
who settled in the Netherlands in 1977. His wife was allowed to join him in
1986. She left their three years old daughter, Sinem, in Turkey. In October
1992, the applicant filed a demand for temporary residence for Sinem. The
demand was rejected by the Ministry of Foreign Affairs, as well as by the
successive appeal bodies, which considered that by leaving their child behind
the parents had in fact broken the family link. Moreover, they never took part
in the education of Sinem and never requested social benefits for her in the
Netherlands. The authorities also pointed out that the demand for family
reunion was introduced in 1992, some six years after the mother's arrival in
the Netherlands. The authorities did not find any other exceptional
circumstances allowing for the issuance of a residence permit. The applicant's complaint before the
Court is based on Art. 8 of the ECHR. Before the Court, the Dutch
government claims that in this case there is no positive obligation requiring
the issuance of an authorisation to come to the Netherlands since Sinem has
been taken care of by the applicant's relatives in Turkey. In addition to this,
there is no obstacle for the continuation of the family life in the country of
origin. After reviewing the arguments of the parties, the Court declared the
case admissible on the basis of Art. 8 of the ECHR.
Ali Reza
Kalantari vs. Germany (Appl. No. 51342/99, Decision of 28 September 2000)
The applicant is an Iranian
national who
left his country of origin because of his involvement in the opposition to the
regime. He sought asylum in Germany in October 1997, submitting various
evidence concerning notably his sisters' political activities. One of them was
tortured to death by the Iranian authorities, whereas the second one was
imprisoned and later granted refugee status in Switzerland. In August 1998, the
application for refugee status was rejected. This decision was confirmed by the
Administrative Tribunal of Ratisbonne and the Administrative Court of Appeal of
Bavaria. The applicant introduced
a new asylum claim in March 1999, arguing that he took part in a demonstration
before the Iranian Embassy in Bonn during which he was interviewed by a local
TV station. This new asylum application was once again rejected in first
instance and in appeal. The German authorities considered that the applicant
did not convincingly demonstrate that his political activities in Germany would
put him at risk in his country of origin and they consequently ordered his
expulsion from Germany. The fact that he signed a petition, latter published in
a Iranian newspaper, and that he spoke on a TV channel received in Iran were
not considered sufficient to establish the existence of a risk of persecution.
In September 1999, the applicant lodged a complaint before the Court based on Art.
3 of the ECHR. Considering that the applicant obtained new evidence,
notably letters from UNHCR[1]
and the World Organisation Against Torture, the German government asked the
Court to reject the application because of non-exhaustion of domestic remedies.
The Court took the view that the German authorities had several opportunities
to consider that applicant's claim for protection and they could have requested
additional evidence if necessary. Consequently, the Court declared the case admissible.
Abdelouahab
Boultif vs. Switzerland (Appl. No. 54273/00, Decision of 5 October 2000)
The applicant is an Algerian
national who
entered Switzerland with a tourist visa in 1992. He married a Swiss national in
1993. In April 1994 he was convicted for unlawful possession of weapons and
sentenced to two years imprisonment by the Court of Appeal in 1997.
Consequently the Swiss authorities refused to renew his residence permit and he
was ordered to leave the territory. After exhausting
domestic remedies, the applicant lodged a complaint before the Court, arguing
that his expulsion from Switzerland would constitute a breach of Art. 8 of
the ECHR.
The applicant, who has finished his prison time, claims that his wife cannot be
expected to follow him and settle in Algeria both because of the integration
difficulties which she would face and because of the present fundamentalist
threats touching foreigners living in Algeria. The Swiss government maintains
that, in light of the applicants criminal offence, the interference with his
family life was justified under the provisions of Art. 8 para. 2 of the ECHR.
Moreover, there is not complete dependency between him and his wife, since she
can sustain herself financially. Also, from the Swiss government's point of
view, even though she would experience some inconveniences if she had to join
her husband in Algeria, she could integrate with the help of the applicant's
family. The Court considered that this case raised serious issues of law and
fact and therefore declared it admissible.
B. Cases
Declared Inadmissible
Richard Lee
Goldstein vs. Sweden (Appl. No. 46636/99, Decision of 12 September 2000)
The applicant is a US
national whose
claim for asylum in Sweden was rejected. The applicant sought
asylum in Sweden in July 1997 because he had revealed police brutality and
other misconduct by law enforcement officers in the US. He founded an
association, 'The Commission on Police Ethics' and he was consequently
subjected to police persecution. His claim was rejected by the National
Immigration Board in September 1997. In second instance, the Aliens Appeals
Board found that the alleged mistreatment was not attributable to the state
authorities but to individual criminal acts. It therefore upheld the first
instance decision. The complaint before the Court is based on Art. 3 and
Art. 13 of the ECHR. The applicant argues that he would certainly
be subjected to treatment contrary to Art. 3 if he was returned to the US. He
also claimed that Sweden did not provide him with an effective remedy since his
request for legal aid was rejected. Concerning the first ground of the
complaint, the Court said that even though the protection of Art. 3 applies in
situations where the mistreatment is inflicted by non-state agents, such
protection would be granted only if it is established that the remedies at the
disposal of the applicant within the domestic legal system cannot provide
appropriate protection. The Court found that such protection existed
in the US. As to the issue of effective remedy and legal aid, the Court
mentioned that Art. 13 did not guarantee as such a right to legal counsel
paid by the state. In the Court's opinion, the absence of free
legal aid in this case did not prevent the applicant from using the remedies at
his disposal in Sweden. A contrario, it is only when the
absence of free legal aid directly prevents the use of the available remedies
that the Court would consider Art. 13 violated. Consequently, the application
was declared inadmissible on both grounds.
Ha You Zhu vs.
the United Kingdom (Appl. No. 36790/97 Decision of 12 September 2000)
The applicant is a Chinese
national
who entered the UK on a false Japanese passport in March 1995. He made an
application for refugee status but was nonetheless detained at HM
Prison, Gateside, Greenbrock in Scotland. His asylum application
was rejected in first instance and in appeal. In the meantime he had introduced
a judicial review proceedings challenging his continued detention. Interim
liberation was finally granted in September 1996. Before the Court, the
applicant claimed that the treatment received in prison pending the
determination of his case amounted to a violation of Art. 3 of the ECHR. He
complained about his physical and psychological isolation in the prison, the
absence of interpreter who would have helped him with his asylum application,
the racist verbal and physical abuse from other prisoners and the treatment
inflicted to him after his suicide attempt. The British government argued that
whilst the applicant's experience may have been unpleasant, it did not reach
the minimum level of severity of Art. 3 of the ECHR. In spite of the evidence
before it, notably a statement by the a prison official describing his medical
concerns about the applicant and an official report concerning the treatment of
persons awaiting deportation in common law prisons, the Court found that the
threshold of Art. 3 was not reached in this case. The application was therefore
declared inadmissible. However, the Court mentioned in an obiter
dictum that
'… it agrees with HM Inspector of Prisons that it is undesirable
for prisoners awaiting deportation to be held in the same location as convicted
prisoners...'.
Vlado Katanic
vs. Switzerland (Appl. No. 54271/00, Decision of 5 October 2000)
The applicant is a
married Bosnian national living in Switzerland since 1987. In 1995, he
was sentenced to nearly three years imprisonment and five years expulsion from
Switzerland for insurance fraud and gun trafficking with the former-Yugoslavia.
The Swiss authorities consequently refused to renew his residence permit, even though
he was released on probation in 1997. After exhausting domestic remedies, the
applicant lodged a complaint before the Court, arguing that the refusal to
renew the residence permit constituted a violation of Art. 8 of the ECHR. The
applicant claimed that his expulsion from Switzerland would be disproportionate
given the fact that he had been released from prison and did not constitute a
danger to the security of the country. His departure would also have a serious
impact on his wife and his child, who both have a right to domicile in
Switzerland. For the Swiss government, the interference with the applicant's
family life was justified by one of the exceptions of Art. 8 para. 2 of the
ECHR, namely public safety. Moreover, being all Bosnian nationals, there was no
obstacle to the pursuance of the family life in the country of origin. The
Court agreed with the Swiss government in that the non-renewal of residence
permit constituted an interference with the applicant's family life. In
considering the justifications presented by the authorities, the Court found
that even though the applicant's wife had a regular employment in Switzerland,
there was not enough evidence showing that she would encounter undue
difficulties in integrating in Bosnia Herzegovina. Moreover, the eleven years
old son is still of an adaptable age. The Court decided that the decision of
the Swiss authorities not to renew the residence permit was therefore justified
and necessary in a democratic society. The case was declared inadmissible.
Stojanka Ilic
vs. Croatia (Appl. No. 42389/98, Decision of 19 September 2000)
The applicant is Yugoslav
national who owns a property in Croatia, which she had bought
before the break up of the Socialist Federal Republic of Yugoslavia in 1991.
From that date, the applicant, who was living in Germany, became a foreigner in
Croatia and was therefore subjected to the Croatian legislation on entry and
stay of foreigners. In 1992, she obtained a one year permission for extended
stay in Croatia, at the expiry of which she returned to Germany. In 1996 she
applied for a permanent residence permit at the Croatian Consulate in
Frankfurt. This latter request was rejected. After exhaustion of domestic
remedies in Croatia, she lodged a complaint before Court, arguing, inter
alia,
that the refusal of the Croatian authorities to grant her a permanent residence
permit resulted in the violation of her property rights (Art. 1
Prot. 1 of the ECHR), since this measure prevented her from using
and enjoying her property in Croatia. The Court stated that in spite of the
negative decision on her permanent residence permit, the applicant did not lose
ownership of her property in Croatia. The restrictions
imposed by Croatia did not concern the property rights per se, but rather
the right of entry and stay on the territory. Therefore, the Court approached
the issue from this particular angle and recalled that the ECHR did not
guarantee as such any right to enter or reside in a contracting state.
Consequently, the Court took the position that the provisions of Art.1 Prot. 1
did not imply the right for a foreigner to permanently reside in the country
where he/she owns property. For the Court the applicant was not prevented from
submitting a request for an entry visa, like she did in 1992, and therefore the
restrictions placed upon her entry in Croatia were not absolute. The reasoning
of the Court is that the applicant should have in fact tried all the legal
possibilities to enter Croatia, before lodging a request in Strasbourg in case
of failure. Only in these circumstances, the Court would have examined her
complaint under Art. 1 Prot. 1 of the Convention. The case was therefore
declared inadmissible.
Kresimir
Strunjak and Others vs. Croatia (Appl. No. 46934/99, Decision of 5 October
2000)
The applicants are Croatian
nationals
who before the independence of Croatia had specially protected tenancies of privately-owned
flats.
In 1991, the Specially Protected Tenancies Act came into force,
providing for the sale to the tenants, at a special rate, of publicly-owned
flats.
Privately owned flats, like the ones occupied by the applicants were not
covered by the provisions of this 1991 Act. The applicants lodged
a constitutional complaint against the 1991 Act, claiming that its
provisions denied them the right to buy their flats and were therefore contrary
to Art. 8 of the ECHR. They also argued that the Act was
discriminatory since they were excluded from its provisions, as opposed to
those having a specially protected tenancy on publicly-owned flats. For its
part, the Court said that Art. 8 of the ECHR only protects a person's right to
respect for his present home and not the right to buy certain properties.
Concerning the issue of discrimination, the Court found that the applicants, as
tenants of privately-owned flats, were in a different position than tenants of
publicly-owned flats. Therefore, both situations were not completely similar
and there were no obstacles preventing the Croatian authorities from treating
them differently. The case was declared inadmissible on both
grounds.
Bozidar
Jankovic vs. Croatia (Appl. No. 43440/98, Decision of 12 October 2000)
The applicant is a Croatian
national who
retired from the Yugoslav People's Army (JNA) in 1987. Payment of the
his pension was terminated in December 1991, following the dissolution
of the Socialist Federal Republic of Yugoslavia. In December 1992, the Croatian
Social Security Fund resumed the payments, but the amount of the pension was
reduced. After exhausting domestic remedies, the applicant lodged a complaint
before the Court under, inter alia, Art. 1 Prot. 1 and
Art. 14 of the ECHR. He argued that the decision to decrease his
military pension violated his property rights and discriminated
against former members of the JNA, since pensioners of the Croatian Army
were granted higher pensions. The Court held that the provisions of Art. 1
Prot. 1 could not be interpreted as giving an individual a right to a pension
of a particular amount. Also, according to the Court, for the purposes of Art.
14 of the Convention, a difference of treatment is discriminatory if it has no
objective and reasonable justification. The Court said that in this respect
states enjoy a certain margin of appreciation in assessing whether and to what
extent differences in otherwise similar situations justify a difference in
treatment. In the present case, Croatia's decision to grant higher pensions to
Croatian Army pensioners fell within its margin of appreciation and its freedom
to grant privileges to that particular category of citizens. Furthermore, the
essence of the applicant's pension rights had not been impaired by the Croatian
authorities, since in fact he simply lost certain privileges that were formerly
granted to him as a military official of a state that does no longer exist. In
view of these elements, the Court declared the case inadmissible on both
grounds.
William Kwakye-Nti
and Akua Dufie vs. the Netherlands (Appl. No. 31519/96, Decision of 7 November
2000)
The applicants were Ghanean
nationals who
sought asylum in the Netherlands in March 1987. Their application for refugee
status was rejected in first instance and in appeal. In February 1991, they
appealed again before the Conseil d'Etat (Raad van State).
Pending a final decision on refugee status, they requested temporary residence
permits for their three sons who remained in Ghana. This request was also
rejected, even though in the meantime the applicants had obtained Dutch
citizenship after naturalisation in February 1993. The Dutch
authorities argued that by leaving their children in Ghana, the applicants had
broken the family ties. Moreover, the parents did not contribute to their
education, nor did they provide them with financial support. Moreover, two of
the children had reached majority age and there was no established dependency
between them and the parents. After exhausting domestic remedies, the applicants
lodged a complaint before the Court on the basis of Art. 8 of the ECHR. The Dutch
government considered that there was a family life between the parents and the
children, but the refusal to grant the temporary residence permits could not be
seen as an interference with the family life of the applicants. The motivations
of the domestic Dutch authorities were correct and nothing prevented the
parents from joining their children in Ghana. In its examination of the case
the Court chose to distinguish between the child who was still minor and the
two others. Concerning these two, the Court mentioned that the protection of
Art. 8 of the ECHR could only be granted if there is dependency, other than
just the usual family affection links, between them and the parents. The Court
found that this was not the case. As to the minor child, the Court held that he
had developed strong linguistic and cultural ties with his country of origin
and that he could be taken care of by his older brothers. Finally, the Court
argued that even though the applicants had obtained Dutch citizenship and
consequently lost their Ghanean citizenship, nothing prevented them from
continuing their family life in Ghana. The case was therefore
declared inadmissible.
C. Cases
Struck out of the List
Abdol Ali
Naghipour vs. the Netherlands (Appl. No. 44737.98, Decision of 10 October 2000)
The applicant is an Iranian
national of Kurdish origin claiming to be member of a communist movement,
the Organisation of Revolutionary Workers in Iran. He entered the Netherlands
in 1995 and applied for asylum. His application for refugee status was turned
down by all instances because of lack of evidence. The complaint before the
Court was based on Art. 3 of the ECHR. However, the case was
not examined on the merits, since the Deputy Minister of Justice decided to
grant the applicant a residence permit. The case was consequently struck out of
the list in accordance with Art. 37(1)b of the ECHR.
D. Friendly
Settlements
NTR
E. Applications
Communicated to Governments
Mazimpaka vs.
Denmark (Appl. No. 39964/98)
The applicant is a Rwandan
national
who applied for asylum in Denmark. His request was rejected on the ground that
it was not established that he was from Rwanda. Even though a deportation order
was issued in 1996, it could not be executed since the authorities did not know
where to send him back. Pending the determination of a country of reception,
the applicant was ordered to report to a police station every day and, having
failed to do so on a number of occasions, he was placed in custody from
September to October 1997. The domestic appeals against the decision to detain
him were rejected. The case has been communicated to the Danish government
under Art. 5(1)f of the ECHR (detention in view of expulsion or extradition).
Bankovic,
Stojanovic, Stoimenovski, and Joksimovic vs. NATO Countries member of the CoE
(Appl. No. 52207/99)
The applicants are Yugoslav
nationals,
relatives of the staff of Radio Television Serbia who died in the bombing by
NATO forces of the RTS building in Belgrade. The applicants claim that since no
warning was given to the RTS employees and since the NATO strikes were backed
by all member states, those member states which are at the same time party to
the ECHR are in breach of their obligations under that Convention. The case
has been communicated to all the defendant states under Art. 1 , Art. 2 (right
to life), Art. 10 (freedom of expression) and Art. 13 (effective remedy) of the
ECHR.
Jin vs. Hungary
(Appl. No. 58073/00)
The applicant is a Chinese
national, whose
extradition has been requested by China. He is accused of robbery and murder
and he is presently detained in Hungary. The Hungarian authorities obtained
formal assurances from the Chinese authorities that he would not be sentenced
to death, and in the event he would be, that the sentence would not be carried
out. However, the applicant claims that he would be summarily judged and
sentenced to imprisonment. Given the conditions prevailing in Chinese prisons
this would amount to inhumane treatment. The case has been communicated to
the Hungarian government under Art. 3 (inhumane and degrading treatment) and
Art. 6 (right to a fair trial) of the ECHR.
F. Rule
39
of the Rules of the Court - Interim Measures
Chakhabov vs.
the Netherlands
The applicant is a Russian
national of Chechen origin. He applied for asylum in the Netherlands
claiming that he deserted the Chechen rebel forces and that he was at risk for
having done so. His claim for asylum was rejected by the Dutch authorities on
the ground that he had an internal flight alternative. While
apparently the Netherlands had suspended the return of rejected cases to
Chechnya, this measure did not apply to the applicant, since he committed a
minor criminal offence which made him deportable. The Court requested the Dutch
government to suspend the execution of the expulsion order pending the
consideration of the case. The Rule 39 measure has been
adhered to by the Dutch government and the case is being examined by the Court.
3. Committee of
Ministers
Resolution
DH(2000) 105 concerning the judgement of the European Court of Human Rights of
28 July 1998, Loizidou vs. Turkey
In accordance with the
provisions of Art. 54 of the ECHR, the Committee of Ministers adopted the a/m
Resolution requesting Turkey to comply
with the Court's judgement in the case of Loizidou. The
Committee of Ministers deplores the fact that Turkey did not even pay the just
satisfaction awarded by the Court. This constitutes in the opinion of the
Committee of Ministers a violation of Turkey's international obligations as a
party to the ECHR and as a member of the Council of Europe. The Resolution
urges Turkey to execute the judgement but it does not foresee any specific
sanctions in case Turkey fails to do so.
4. Other News
On 25 January 2001, Armenia and Azerbaijan became
members of the Council of Europe. On the same date the two countries signed the
ECHR, as well as Protocol 1, 4, 6 and 7.
UNHCR LO Strasbourg,
9 February 2001