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ECHR CASE LAW UPDATES

CASE: Ramos Nunes de Carvalho e sa v. Portugal      Violation of Article 6
Application no.:
55391/13; 57728/13; 74041/13    21 June 20 - Referral to Grand Chamber 17 October 2016
Press Release: http://hudoc.echr.coe.int/eng#{"appno":["55391/13"]}

The applicant, a judge, was subject to three sets of disciplinary proceedings launched by the High Council of Justice (HCJ): one for allegedly calling a judicial inspector a liar and lacking in professional diligence, one for allegedly organising a false testimony in the first procedure, and one for allegedly asking the same judicial inspector during a private conversation to drop the proceedings. By decision of the HCJ, upheld by the complaints section of the Supreme Court, a sanction of 240 days of suspension was imposed, combining the misconduct confirmed by both levels in all three cases.

The Court cites among relevant international documents the European Charter on the Statute for Judges, the CCJE “Magna Carta” for judges and CM/Rec(2010)12. It spends little time establishing the applicability of the civil limb of Art. 6 to the case, referring simply to the Eskelinen test and to the Volkov and Olujic cases among others.

Noting that the European Charter on the Statute for Judges recognises the need for a significant number of the members of a disciplinary body to be judges, the Court finds that under the Portuguese system the rules governing the make-up of the disciplinary body in each case could result in that body being made up predominantly of non-judicial members appointed directly by the executive or legislative authorities. It also expresses concern that the law does not set out any requirements as regards the qualifications of the non-judicial members of the HCJ, and then concludes that, for these reasons, the independence and impartiality of the HCJ may be questioned.

The Court finds that the review carried out by the Supreme Court as the appeals body was insufficient and failed to examine important arguments raised by the complainant. Moreover, the refusal of the Supreme Court to hear a witness that the applicant wished to call affected the defence rights of the applicant, and the decision of the HCJ to hold the hearing behind closed door was not justified. The Court concludes that, taken together, these elements amount to a violation of Article 6.1.



CASE: Hammerton v. The United Kingdom      Violation of Articles 5 § 1, 6 §§ 1 and 3 (c)
Application no. 6287/10   17 March 2016 - Final 12 September 2016
Press Release: http://hudoc.echr.coe.int/eng-press#{"fulltext":["6287/10"],"itemid":["003-5328932-6641262"]}

In the case William Hammerton v United Kingdom was committed to prison for civil contempt of court in family proceedings. The applicant, relying on Article 5 § 1 (right to liberty and security), complained about his committal to prison, alleging in particular that his detention had been unlawful. Also relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) and Article 13 (right to an effective remedy), he complained that, although the UK courts had acknowledged that there had been a violation of his rights, they had failed to award him financial compensation and that domestic law had prevented him from receiving such damages.



CASE:  Z.H. and R.H. v. Switzerland       Violation of Article 8
Application No. 60119/12  8 December 2015 - Final 8 March 2016

Press Release:   http://hudoc.echr.coe.int/eng-press#{"fulltext":["60119/12"]}

In the case of Z.H. and R.H. v. Switzerland, the Court found that there had been no violation of the Convention. The applicants, who had had a religious marriage in Iran at the ages of 14 and 18, had complained of the refusal by the Swiss authorities to recognise their marriage as valid and to take it into account for their asylum application.

The Court found that the Convention could not be interpreted as requiring a State to recognise a marriage entered into by a child of 14.



Case: Nazarenko v. Russia      Violation of Article 8
Application No. 39438/13,
   10 June 2015 - Final 16 October 2015
Press Releases: http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"appno":["39438/13"],"itemid":["001-156084"]}

Inflexibility of Russian family law: complete and automatic exclusion of non-biological father from child’s life when it was revealed that he was not the biological father -  violation of Article 8 (right to respect for private and family life).



Case: Khoroshenko v. Russia      Violation of Article 8
Application No. 41418/04, 10 June 2015
Press Releases:  http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"itemid":["001-156059"]}

Judgment in a case concerning restrictions on family visits to life prisoners.  Allowing only short-term family visits twice a year over ten-year period violated prisoner’s right to family life.



Case : MatĂşz c. Hongrie      Violation de l'Article 10
Application No. 73571/10 (disponible seulement en anglais),  21 octobre 2014 - Final 21 January 2015
Press Release:  http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"itemid":["003-4910762-6007173"]}

Whistleblowing journalist dismissed for publishing a book criticising his employer in breach of confidentiality clause: violation

The applicant was a Hungarian journalist employed by the state television company. In 2004 he was dismissed for breaching a confidentiality clause after he published a book concerning alleged censorship by a director of the company. He challenged his dismissal in the domestic courts, but without success.

Finding unanimously a violation of Article 10, the Court first considered that the dismissal was prompted only by the publication of his book, without further examination of his professional ability, and thus constituted an interference with the exercise of his freedom of expression. That interference had not been “necessary in a democratic society”, because the applicant’s conduct had been in the public interest, i.e. to draw public attention to censorship within the state television.

The Court took into account that the applicant had acted in good faith, and the book was published only after the applicant had unsuccessfully tried to complain about the alleged censorship to his employer. It also noted that the domestic courts had found against the applicant solely on the ground that publication of the book breached his contractual obligations, without considering his argument that he was exercising his freedom of expression in the public interest.




Cases: Mennesson v. France and Labassee v. France       Violation of Articles 8 and 41
Application Nos. 65192/11 and 65941/11, 26 June 2014 - Final 26 September 2014
Press Release:  http://hudoc.echr.coe.int/sites/fra/Pages/search.aspx#{"itemid":["003-4804614-5854905"]} (in French only)

No violation of article 8 (right to respect for private and family life) of the European Convention of the human rights with regard to the right of the applicants to respect for their family life.
Violation of article 8 with regard to the right of the child to respect for their private life.

These cases concern the refusal in french law to recognise a filiation legally established in the United States between children born through surrogacy (GPA) and the couples having had recourse to this method.



Case: Polidario v. Switzerland      Violation of Article 8
Application No. 33169/10, 30 July 2013 - Final 30 October 2013
Press Release: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"itemid":["003-4448978-5354287"]} (in French only)


The applicant is a national of the Philippines and lives in Geneva. She had a child with a Lebanese man who had acquired Swiss nationality. She was required to leave Switzerland and she returned to the Philippines with the child. She signed an affidavit authorising the father to have his son in Switzerland for the holidays. The father did not then return his son to the Philippines. The father was then awarded custody of the child and the applicant had access rights which had to be exercised in Switzerland, whereas she had no authorisation to stay there. Relying on Article 8 (right to respect for private and family life), she complained that the refusal by the Swiss authorities to issue her with a residence permit for over six years had breached her right to respect for her family life.



Case: X and Others v. Austria      Violation of Articles 14 and 8
Application No.
19010/07, 19 February 2013
Press Release: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"itemid":["003-4264492-5083115"]}
Violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) and
No violation of Article 14 taken in conjunction with Article 8 when the applicants’ situation was compared
with that of a married couple in which one spouse wished to adopt the other spouse’s child
.

The case concerned the complaint by two women who live in a stable homosexual relationship and the Austrian courts’ refusal to grant one of the partners the right to adopt the son of the other partner without severing the mother’s legal ties with the child (second-parent adoption).



Case: Ahmet Yildirim v. Turkey      Violation of Article 10

Application No. 3111/10, 18 December 2012 - Final 18 March 2013
Press Release:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"itemid":["003-4202780-4985142"]}

The case concerned a court decision to block access to Google Sites, which hosted an Internet site whose owner was facing criminal proceedings for insulting the memory of AtatĂĽrk. As a result of the decision, access to all other sites hosted by the service was blocked.



Case: Miller v. Sweden      Violation of Article 6
Application No. 55853/00, 8 Feb. 2005 - Final 8 May 2005
Press Release: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{"itemid":["003-1254201-1314567"]}


The case concerns an applicant that applied for disability benefits. He claimed that, even before his 65th birthday in 1983, he had incurred extra costs due to his illness, (Charcot-Marie-Tooth: patients suffering from this disease slowly lose their normal use of their feet/legs and hands/arms as nerves to the extremities degenerate), from which he had suffered since the 1970s and which had been diagnosed in September 1982. The Social Insurance Office of the County of Stockholm rejected the application, finding that the applicant’s disability had not reached the level required before he turned 65 years of age.