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 and Loizidou vs. Turkey, 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
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