- Update
No. 17 -
Relevant
Case-Law of the European Court for the Protection of Human Rights and Fundamental Freedoms
(July
2001- December 2001)
(Summary of
Judgements & Decisions)
1. Court's
Judgements
Erdem vs.
Germany (Appl. No. 38321/97, Judgement of 5 July 2001)
The applicant, a Turkish
national of Kurdish origin, was a recognised refugee in France.
He was arrested in 1988 at the German border on suspicion of belonging to a
terrorist organisation. He was placed in detention in Germany pending the
investigation on his involvement in the PKK and his responsibility in a number
of murders and sequestration. He was ultimately sentenced to six years
imprisonment in March 1994 for being one of the founders of the PKK, a member
of its executive committee in charge of surveillance of opponents and their
elimination. Before the Court, the applicant complained of the excessive
length of his pre-trial detention (Art. 5 para. 3 and Art. 6 para. 2 of the
ECHR)
and of the fact that German law authorised the control of his correspondence
with his lawyer (Art. 8 of the ECHR). According to the
German government the length of the detention was justified by the complexity
of the case, the numerous persons accused and the defence strategy of the
applicant's lawyer. The German courts also justified the applicant's continued
detention by the lack of representation guarantees. The Court noted that the 5
years pre-trial detention could only be justified by the protection of public
interest. After reviewing the arguments of the German government, the Court
considered that neither the complexity of the case, nor the alleged lack of
representation guarantees could justify such a long detention. Moreover, the
Court noted that the domestic courts seized with the numerous release requests
used a standardised argumentation to refuse it, without looking at whether
there were new elements. The Court concluded that there was a violation of
Art. 5 para. 3 of the ECHR and it did not consider necessary to examine the
issue of violation of Art. 6 para. 2. Concerning the control
of the applicant's correspondence, the Court confirmed that this constituted an
interference, in accordance with the law which pursued a legitimate aim. The
Court then controlled the necessity of such measure. It noted that in German
law control of correspondence was foreseen only in terrorism cases, with regard
to specific individuals. Moreover, the control is limited to the written
correspondence and it is done by an independent judge, not involved in the
investigations. For all these reasons the Court concluded that there was no
violation of Art. 8 of the ECHR.
Al-Adsani vs.
The United Kingdom, (Appl. No. 35763/97, Judgement of 21 November 2001)
This case involved a British/Kuwaiti
national
who left Kuwait for the UK, after he was allegedly tortured by the Kuwaiti
authorities. In the UK, the applicant initiated civil proceedings against
the Sheikh and the Government of Kuwait in order to obtain
compensation for the injury caused by the acts of torture. He obtained a
default judgement against the Sheikh but, on the basis of the 1978 State
Immunity Act, the action against the Government of Kuwait was struck out.
Before the Court, the applicant argued that by denying him the possibility of
initiating civil proceedings against the Government of Kuwait, the UK
violated the provisions of Art. 3 and Art. 6 (particularly access to court) of
the ECHR.
On the first part of the claim, the Court considered that States' obligations
deriving from Art. 3 of the ECHR can extend to the obligation to carry out
investigations for acts of ill-treatment committed within their jurisdictions
or the obligation not to return a person to a country where he/she would face
ill-treatment. However, in the present case the alleged acts of ill-treatment
did not occur in the UK and the British authorities had no causal link with
their occurrence. Moreover, the applicant was not in danger of being sent back
to Kuwait, since he was also a British national. Consequently, the Court
considered that there was no violation of Art. 3 of the ECHR. Concerning
the issue of access to court, the Court first considered that Art. 6 para. 1
was applicable in the present case since the principle of state immunity is a
procedural mechanism preventing an applicant to pursue proceedings before
domestic courts. However, on the merits, the Court declared that despite the
fact that prohibition of torture is now considered to be a peremptory norm of
international law (jus cogens), it could not find
any rule of international law allowing for the waiving of state immunity in
civil claims. Consequently, it decided that here was no violation of Art. 6
para. 1 of the ECHR. In their concurring opinions Judge Pellonpaa
(Fin.) and Judge Bratza (UK) argued that finding a violation of Art. 6 para. 1
in the present case could have had the consequence of seeing recognised
refugees suing their country of origin for compensation before the domestic
courts of countries of asylum. The immediate side effect would have been the
adoption of an even more restrictive approach to refugees and asylum.
Formulating a more legal argument, two other dissenting judges found that the
Court did not draw all the consequences from the peremptory nature of
prohibition of torture. In their view, if prohibition of torture is a rule of jus
cogens,
then lower rules of international law, such as the principle of state immunity,
should be ignored.
Boultif vs.
Switzerland, (Appl. No. 54273/00, Judgement of 2 August 2001)
The applicant, an Algerian
national,
entered Switzerland with a tourist visa in 1992. He married a Swiss national in
1993. In 1994, he was sentenced to two years imprisonment for unlawful
possession of weapons, robbery and damage to property.
Subsequently the Swiss authorities refused to renew his residence permit and he
was ordered to leave the territory after serving his prison
sentence. He fled to Italy, where he has been living illegally. The various
remedies against the non-renewal decision were unsuccessful and the applicant
lodged a complaint before the Court, arguing that the non-renewal of his
residence permit constituted a breach of Art. 8 of the ECHR since it
prevented him from pursuing a family life. The applicant claimed that his wife
could not be expected to follow him and settle in Algeria both because of the
integration difficulties which she would face and because of the fundamentalist
threats touching foreigners living in Algeria. The Swiss government maintained
that, in light of the serious criminal offences committed by the applicant, the
interference with his family life was justified under the provisions of Art. 8
para. 2 of the ECHR and its decision not to renew the residence permit came
therefore within the limits of its margin of appreciation. The Court
examined whether the measure was necessary in a democratic society by taking
into consideration the nature of the offence, the length of stay in the country
of residence, the family situation and the difficulties which the spouse would
encounter in the country of origin of the applicant. The Court considered that
the applicant behaved correctly during and after his time in prison. He
followed some professional training and was about to obtain a regular
employment. Moreover, the Court determined that since the applicant's wife never
lived in Algeria and had no ties with that country, she could not be expected
to follow him there. Also, since it was not established that the applicant and
his wife could obtain residence permits in Italy, the Court decided that the
attacked measure constituted an interference with their family life. Therefore,
the Court concluded that there was a violation of Art. 8 of the ECHR.
Sen vs. the
Netherlands (Appl. No. 31465/96, Judgement of 21 December 2001)
The applicant, a
Turkish national, settled legally in the Netherlands at the age of 12. He
obtained a residence permit and got married in 1982. His wife joined him in the
Netherlands in 1986, after giving birth to a child in Turkey. The child was
given to the care of relatives in Turkey. In 1990 and in 1994, the applicant
and his wife had two other children in the Netherlands this time. In the
meantime, the applicant requested in 1992 a residence permit for the child who
remained in Turkey. This was refused. The Dutch authorities considered that
such a decision was motivated by the governmental immigration policy and by the
fact that the child could be taken care of by relatives in Turkey. It was also
considered that the family link between the family in the Netherlands and the
child in Turkey was broken and that the parents did not contribute to her
education or financial support. The complaint before the Court was based on Art.
8 of the ECHR (right to family life). The Dutch government
recognised that there was a family life between the child and the parents, but
considered, inter alia, that the family was not prevented from
reuniting in the country of origin. Moreover, the defending government held
that it had no positive obligations in this case, since the child's care and
education did not so far depend on her parents. Focusing on the returnability
test,
the Court considered that there were serious obstacles to the family's return
to Turkey. Two of the children were born and lived in the Netherlands and
except for their nationality, they had no other links with their country of
origin. They went to school in the Netherlands and they were raised in the
Dutch society. Under these circumstances, the Court considered that only
reunification in the Netherlands was therefore possible. The Court concluded
that there was a violation of Art. 8 in this case.
2. Court's
Decisions
A.Cases
Declared Admissible
Elvis Jakupovic
vs. Austria (Appl. No. 36757/97, Decision of 15 November 2001)
The applicant, a national of Bosnia-Herzegovina (born in 1979), arrived in Austria in 1991, joining his mother who already lived and worked there. In January 1994, the police filed a complaint against the applicant on suspicion of burglary. In May 1995, the District Administrative Authority issued a prohibition on possessing arms against him after he had attacked several persons. In August 1995, the Regional Court convicted him of burglary and sentenced him to five months imprisonment, suspended for a probation period of three years. In September 1995, the District Administrative Authority issued a ten-year residence prohibition against him on the ground of the aforementioned events and notably his conviction. It found his stay on the territory to be contrary to the public interest. The applicant's successive appeals against this decision were unsuccessful. In February 1996, the Regional Court convicted him once more of burglary, sentencing him to 10 weeks’ imprisonment, suspended for a three-year probation period. The Austrian authorities found that, in spite of the fact that his mother, brother and two half-sisters lived in Austria, the residence prohibition was necessary in the public interest in view of his criminal behaviour. The complaint before the Court is based on Art. 8 of the ECHR. The applicant argues that the residence prohibition is a disproportionate measure since the offences he committed were merely minor acts of juvenile delinquency. He also claims that he has developed strong ties with Austria, where most of his family and his girlfriend live. Moreover, he has no more contacts with his father who is reported missing after the conflict in Bosnia Herzegovina. The Austrian government considers that the residence prohibition is a legitimate measure, in accordance with the provisions of Art. 8 para. 2 of the ECHR. The Court declared the case admissible under Art. 8 of the ECHR.
B.
Cases Declared Inadmissible
Bankovic,
Stojadinovic, Stoimenovski, Joksimovic, Sukovic vs. Belgium, Czech Republic,
Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands,
Norway, Poland, Portugal, Spain, Turkey and the United Kingdom (Appl. No.
52207/99, Decision of 19 December 2001)
The applicants, all nationals
of the Federal Republic of Yugoslavia, are the direct and
indirect victims of the April 1999 NATO strikes on the
headquarters of Radio Televizije Srbije (RTS) in Belgrade. They
claimed that the bombings constituted a violation of Art. 2 (right to life),
Art. 10 (freedom of expression) and Art. 13 of the ECHR. Prior to the
examination of the merits of the claim, the Court had to determine whether the
applicants came under the purview of Art. 1 of the ECHR, i.e.
whether they were under the jurisdiction of the High Contracting Parties. The
respondent governments argued, inter alia, that the applicants
were not under their jurisdiction since they did not exercise over them any
legal authority. According to them, it cannot be considered that they were in
control of the airspace over Belgrade or that they controlled the airspace in
manner comparable to a territorial control. They consider the situation to be
different from that of Soering vs. the United Kingdom[1]
and
Loizidou vs. Turkey[2], where the
UK and Turkey had direct authority over respectively an individual and a
territory. The respondent governments also contended that holding them
responsible for their collective international military activities would have
serious consequences on their future participation to such international
missions and also distort the purpose of the ECHR. For its part the Court reminded
that the jurisdictional competence of a State is primarily territorial.
Extra-territorial jurisdiction is not excluded, but it is limited by the
sovereign territorial rights of other States. For the Court, while it did
exceptionally consider that acts performed or producing effects outside a State
party's territory can constitute an exercise of jurisdiction, Art. 1 of the
ECHR reflects nonetheless an essentially territorial conception of
jurisdiction. In the present case, the Court did not consider that the acts of
the respondent governments had the effect of bringing the victims of the
strikes under their jurisdiction. For the Court, no positive obligations can be
identified to provide a protection under the specific circumstances of this
case. The Court concluded that there was no jurisdictional link between the
victims of the strikes and the respondent states. The case was therefore
declared inadmissible.
C.
Cases Adjourned
Jovan
Momcilovic vs. Croatia, (Appl. No. 59138/00, Decision of 27 December 2001)
The applicant is a Croatia-Serb who used to
live in Split until July 1991. On that date he went to Tuzla to visit his
daughter. The war broke out in Dalmatia and the conflict escalated in Croatia
and Bosnia Herzegovina, preventing him from returning to Split. He fled to
Belgrade. In 1996, the Croatian authorities terminated the tenancy right which
he had on his apartment in Split. In March 1999, he filed with the Croatian
Embassy in Belgrade an application for return to Croatia in accordance with the
'Procedure for the Individual Return of the Persons who Left Croatia'. He is still
awaiting a reply from the Croatian authorities with regard to this matter.
Before the Court the applicant claimed that the termination of his tenancy
right violated Art. 8 and Art. 1 Prot. 1 of the ECHR.
In addition, he claimed that the procedure contravened Art. 6 of the ECHR,
since he was not able to participate in it. He further argued that the failure
of the Croatian authorities to issue him entry documents in accordance with the
'Procedure for the Individual Return of the Persons who Left Croatia' violated Art.
3 para. 2 Prot. 4 of the ECHR (right to enter territory of one's nationality). Concerning
the termination of tenancy rights, the Court considered that since the domestic
proceedings ended in 1996, prior to the entry into force of the ECHR in respect
of Croatia, this part of the claim was outside of its competence ratione
temporis.
As to the issue of return to Croatia, the Court decided to request the views of
the Croatian government and the examination of this part of the claim was
therefore adjourned.
D.
Cases Struck out of the List
Ali Reza
Kalantari vs. Germany, (Appl. No. 51342/99, Judgement of 11 October 2001 )
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. While the
case was pending before the Court, the German Federal Refugee Office ultimately
found that there were obstacles to the applicant's return to his country of origin
and that, in accordance with the domestic law (Art. 53 para. 4 of the Aliens
Act), he should not be returned. The case was consequently struck out of the
Court's list.
E.
Friendly Settlements
Duyonov and
Others vs. The United Kingdom, (Appl. No. 36670/97, Judgement of 2 October
2001)
The applicants are Georgian
nationals
who arrived illegally in Gibraltar with a view to seeking
asylum.
In accordance with the applicable domestic law they were put in detention
pending deportation. Their demand for release was approved in first instance
but, after appeal from the authorities, rejected in second instance. While the
applicants were seeking leave to appeal to the Privy Council, they made a
request for legal aid in order to prepare and present their arguments. The
request for legal aid was refused since legal aid was not foreseen for
procedures before the Privy Council. The Chief Justice himself found that such
a procedure did not conform with the provisions of the ECHR. On 5 March 2001,
the Gibraltar House of Assembly passed a law providing for legal aid to be
granted for appeals to the Privy Council and in summer 2001, the Parties
informed the Court that they had reached a friendly settlement consisting in
the payment of a sum of money. There was no indication as to the fate of the
asylum applications. The Court nonetheless decided to strike the case out of
its list.
K.K.C. vs. The
Netherlands,(Appl. No. 58964/00, Judgement of 21 December 2001 )
The applicant, a Russian
national of Chechen origin, was a member of the Chechen army. In October
1994, he was commander of a battalion and he was given the order to open fire
on opposition Chechen forces fighting against Maskhadov's troops. The applicant
refused to carry out the order and he was allegedly arrested, detained and
accused of treason. He managed to escape from prison in November 1994 and in
February 1997 he left for the Netherlands where he applied for asylum. His
asylum application was rejected throughout the procedure. The Dutch domestic
courts found that while it was possible the applicant was a member of the
Chechen army and that he could fear mistreatment for having refused to carry
out an order, he did not have to return to Chechnya but he could settle
anywhere else in the Russian Federation. It was also held that, although
persons of Chechen origin might experience discrimination in the Russian
Federation, it was not established that the applicant's life would be
untenable. The claim before the Court was based on Art. 3 of the ECHR. In this case,
the Court allowed UNHCR to submit its written observations, focusing on the
legal and practical situation of Chechens in the Russian Federation. The Russian
Government also submitted its observations. However, the Court decided to
strike the case out of its list since a friendly settlement was ultimately
reached between the parties. The applicant received a residence permit
without restrictions.
F.
Applications Communicated to Governments
Balogh vs.
Hungary (Appl. No. 47940/99)
The applicant, a Hungarian
national of Rom origin, was arrested on suspicion of theft. He was
allegedly mistreated by police officers. His eardrum was perforated. All
domestic proceedings were unsuccessful due to lack of evidence. The application
to the Court was communicated to the Hungarian government on the basis of
Art. 3 of the ECHR.
Napijalo vs.
Croatia (Appl. No. 66485/01)
In February 1999, the
applicant’s passport was confiscated by the Croatian customs as he came
back from Bosnia Herzegovina. Thereafter his passport remained in the hands of
the authorities, although no proceedings were instituted against him. In March
1999, the applicant filed a civil action against the Ministry of Finance in the
competent Municipal Court. The proceedings are still pending. In April 1999, he
lodged an application with the county court claiming that his freedom of
movement was being breached and requesting that the Ministry of Finance be
ordered to return his passport. In September 1999, his application was turned
down and he was advised to start civil proceedings before a municipal court
against the Ministry of Finance to recover his passport. The application before
the Court was communicated to the Croatian government on the basis of Art. 6
para. 1 (applicability, length of proceedings) and Art. 2 of Prot. 4
(freedom of movement) of the ECHR.
G.
Rule 39 of the Rules of the Court - Interim Measures
NTR
3. Committee of
Ministers
Hilal vs. the
United Kingdom (Appl. No. 45276/99, Judgement of 6 March 2001)
The UK authorities
issued to the applicant an indefinite residence permit.
4. Other News
The Council of Europe is
currently negotiating the adoption of Protocol 13 on the abolition of the
death penalty in all circumstances. The draft text of the protocol is now
before the Committee of Ministers for discussion by the Permanent
Representatives of the Member States. If adopted by the Committee of Ministers,
it will enter into force after ten ratifications and amend for the concerned
States the provisions of Art. 2 para.1 of the ECHR (right to life).
UNHCR LO Strasbourg,
17 January 2002