ECHR Case-law updates
Case: M.K. v. Greece
Non-violation of Article 8 (right to respect for private and family life)
The case concerned the inability of M.K., the mother of two children, to exercise custody of one of her sons (A), despite a decision by the Greek courts awarding her permanent custody. Her ex-husband lives in Greece with their two sons, while M.K. lives in France.
M.K. complained that the Greek authorities had not complied with the judgments in her favour given by the Greek and French courts regarding the custody of her son. She further alleged that they had refused to facilitate the child’s return to France and had failed to act on her complaints against her ex-husband for child abduction.
The Court found in particular that the Greek authorities had taken the measures that could reasonably be expected of them in order to comply with their positive obligations under Article 8 of the Convention and there had therefore been no violation of that provision. Among other things, the Greek authorities had taken into account the overall family situation, the way it had changed over time and the best interests of the two brothers, and especially of A. The latter, who had been 13 at the time, had clearly expressed to the Greek authorities a wish to remain with his brother and father in Greece.
In the Court’s view, the wishes expressed by a child who had sufficient understanding were a key factor to be taken into consideration in any judicial or administrative proceedings affecting him or her. The right of children to be heard and to be involved in the decision-making in any family proceedings primarily affecting them was also guaranteed by several international legal instruments. In particular, Article 13 of the Hague Convention provided that the authorities could refuse to order the return of a child if the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his or her views.
Case: Catalan v. Romania
- Non-violation of Article 10
- Application no. 13003/04
- Date: 9 January 2018
- Hudoc Press Release and Court Judgment (in French)
The case concerned the dismissal of a civil servant (Mr Catalan), who worked for the National Council for the Study of Securitate Archives (CNSAS) for having disclosed information to the press, without his employer’s permission. Mr Catalan challenged his dismissal, but the domestic courts found that, by expressing himself publicly, he had breached his duty of discretion as a civil servant and that, in disciplining him, the CNSAS had acted within the scope of its relevant powers.
The Court took the view that Mr Catalan was subject to a duty of discretion inherent in his post, and that he should therefore have shown greater care and particular moderation in his remarks; that the duty of discretion could not be negated by the public interest in matters arising from the application of Law no. 187/1999 (conferring on the CNSAS the role of informing the public about collaboration with the Securitate) or by access to the Securitate archives; that the risk of manipulation of public opinion on the basis of a small number of documents extracted from a file added more weight to the duty of loyalty towards the CNSAS, whose role and function was to provide the public with reliable and credible information.
According to the Court, the interpretation by domestic courts of the duties deriving from the status of civil servant was not unreasonable, as Mr Catalan had publicised information which had fallen within his employer’s remit and he had undermined the rights of CNSAS. it had been in the interest of the CNSAS to dissociate itself from its official in order to preserve public confidence in this institution. Moreover, the CNSAS had been legitimately entitled to consider that the public position taken by its employee on a sensitive subject had irretrievably compromised the relationship of trust that had to be maintained between themselves.
The Court found that Mr Catalan’s dismissal constituted interference with the exercise of his right to respect for his freedom of expression; that this interference - prescribed by law - had pursued two legitimate aims (to prevent the disclosure of confidential information and to protect the rights of others) and was necessary in a democratic society. On this last regard, the Court reiterated that the civil service required of its staff a duty of loyalty and discretion, and that certain manifestations of the right to freedom of expression that might be legitimate in other contexts were not legitimate in the workplace. It further noted that the present case raised a separate issue from those relating to whistleblowing by employees about unlawful conduct or acts witnessed at work, involving the disclosure of information or documents of which they had knowledge in the course of their duties.
Case: Ramos Nunes de Carvalho e sa v. Portugal
- Violation of Article 6
- Application no. 55391/13; 57728/13; 74041/13
- Dates: 21 June 20 - Referral to Grand Chamber 17 October 2016
- Press Release: Press Release Judgment
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
- Dates: 17 March 2016 - Final 12 September 2016
- Press Release: Hudoc ECHR
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
- Dates: 8 December 2015 - Final 8 March 2016
- Press Release: Hudoc Press Releases
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
- Dates: 10 June 2015 - Final 16 October 2015
- Press Releases: Hudoc case of Nazarenko v. Russia
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
Dates: 10 June 2015
Press Releases: Hudoc l’affaire Khoroshenko c. Russie
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 : Matúz c. Hongrie
- Violation de l'Article 10
- Application No. 73571/10
- Dates: 21 octobre 2014 - Final 21 January 2015
- Press Release: Hudoc Judgments concerning Hungary, Italy, Latvia, Lithuania, Romania, and Turkey
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.
Case: Mennesson v. France and Labassee v. France
- Violation of Articles 8 and 41
- Application Nos. 65192/11 and 65941/11
- Dates: 26 June 2014 - Final 26 September 2014
- Press Release: Hudoc Arrêts Mennesson c. France et Labassee c. France - liens de filiation pour des enfants nés d’une GPA à l’étranger
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
- Dates: 30 July 2013 - Final 30 October 2013
- Press Release: Hudoc Arrêts de chambre concernant la Roumanie et la Suisse
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
- Dates: 19 February 2013
- Press Release: Hudoc Grand Chamber judgment X and others v. Austria 19.02.13
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
- Dates: 18 December 2012 - Final 18 March 2013
- Press Release: Hudoc Chamber judgment Ahmet Yildirim v. Turkey 18.12.2012
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 Atatürk. 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
- Dates: 8 Feb. 2005 - Final 8 May 2005
- Press Release: Hudoc Chamber judgments 08.02.05
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.
Case: Slovenia v. Croatia
The Chamber to which the inter-States case Slovenia v. Croatia had been assigned has relinquished it to the Grand Chamber.
The case concerns allegations of unfairness, a lack of impartiality and discrimination by the Croatian courts in proceedings brought by a Slovenian bank, Ljubljanska banka d.d., to collect debts owed by Croatian companies.