Selected case laws of the European Court of Human Rights below are classified by theme in areas of public and private law falling within the competence of the CDCJ, inter alia: justice and the rule of law, administrative law, family law including the rights of children and parents, nationality.

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JUSTICE AND RULE OF LAW

JUSTICE AND RULE OF LAW

Broda and Bojara v. Poland

Removal of the applicants from office did not respect their right of access to a court

The applicants, Mariusz Broda and Alina Bojara, are Polish nationals who were born in 1969 and1960 and live in Kielce.

The case concerns their complaint that they did not have any remedy by which to challenge the decisions of the Minister of Justice to put a premature end to their term of office as vice-president of the Kielce Regional Court.

Relying on Article 6 § 1 (right of access to a court), the applicants complain that they were dismissed from their posts as vice-president of a court, alleging that their dismissal had been unlawful and arbitrary and that there had been no specific judicial remedy enabling them to challenge the decision.

Bagirov v. Azerbaijan

suspension and disbarment from practising law

  • Violation of Articles 8 (right to respect for private and family life), 10 (freedom of expression)
  • Applications nos. 81024/12 and 28198/15 (Final judgment 25 September 2020)
  • Press Release

The case concerns the applicant's complaint of his suspension from practising law for one year, then disbarred because of statements he had made about police brutality and the functioning of the judicial system in the country.

 

Ramos Nunes de Carvalho e sa v. Portugal

Suspension following discipliinary procedures

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.

TThe 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.

Żurek v. Poland

Changes in the judiciary

  • Articles 6 (right ot a fair trial), 10 (freedom of expression) and 13 (right to an effective remedy)
  • Application No. 39650/18 (6 August 2018)
  • Judgment: The Court’s ruling in the case will be made at a later stage.
  • Statement of facts
  • Press Release

The case concerns the premature termination of a judge’s mandate as a member of the National Council of the Judiciary (“the NCJ”), the constitutional organ in Poland which safeguards the independence of courts and judges, his dismissal as spokesperson for that organ, and the alleged campaign to silence him.

 

 

ADMINISTRATIVE LAW

ADMINISTRATIVE LAW

Association BURESTOP 55 and Others v. France

  • Violation of Article 6 § 1 (right of access to a tribunal); Non violation of Article 10 (right of access to information)
  • Application No. 56176/18 (1 July 2021 - available only in French)
  • Case Details
  • Press Release
  • Related

The case concerned environmental protection associations which were opposed to the planned
industrial geological storage centre known as Cigéoon the Bure site along the boundaries of the
départements of Meuse, Haute-Marne and Vosges, in the Grand Est administrative region. The
centre was designed for the storage in deep geological repositories of high-level and long-life
radioactive waste.

Those associations had sued the National Agency for the management of
radioactive waste (ANDRA), seeking compensation for damage caused by the failure to provide
mandatory public information under Article L. 542-12 7° of the Environmental Code. Their actions
were dismissed, one for the association’s lack of locus standi and the five others on the merits.

Zustović v. Croatia

Right to a fair trial - reimbursement of judicial costs 

The applicant, Nisveta Zustović, is a Croatian national who was born in 1957 and lives in Kršan (Croatia). The case concerned administrative and judicial-review proceedings regarding the applicant’s disability pension in which the relevant administrative court, while ruling in her favour on the merits, dismissed her claim for costs on the basis of the Administrative Disputes Act, which, at the time, had provided that each party in judicial-review proceedings had had to bear its own costs. That provision had later been invalidated by the Constitutional Court as incompatible with the Constitution.

The applicant relied on Article 6 § 1 (right to a fair trial) and complained that her right to a fair hearing had been violated on account of her inability to obtain reimbursement of the costs of the judicial-review proceedings in which the domestic courts had ruled in her favour.

Omdahl v. Norway 

Right to a fair hearing within a reasonable time

The applicant, Olav Omdahl, is a Norwegian national who was born in 1951 and lives in Oslo. The case concerned the administration and division of a deceased person’s estate to his heirs. 

The deceased had built up a large business in the shipping industry and the estate was considerable, including a large number of properties, several companies, factories and ships. A trust in the Bahamas came to light halfway through the administration period and a number of dispute proceedings between the heirs were instituted and settled. The administration period lasted 22 years and four months.

Relying on Article 6 § 1 (right to a fair hearing within a reasonable time), the applicant complained that the length of time taken to administer the estate had failed to meet the “reasonable time” requirement of the article.

 

Alfa Glass Anonymi Emboriki Etairia Yalopinakon v. Greece

Refusal to fix expropriation compensation

  • Violation of Article 1 of Protocol No. 1 - (protection of property) and Article 41 (non-pecuniary damage)
  • Application No. 74515/13 (judgment of 21 January 2021 (available only in French))
  • Case Details
  • Press Release
  • Related

The case concerns the refusal of the civil courts, called upon to fix compensation for the expropriation, to examine a request tending to challenge a presumption that the applicant derived an advantage from carrying out the work relating to the expropriation and, for this reason, part of the expropriated land was not considered as compensable.

Miller v. Sweden

Claim for disability benefits

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.

 

FAMILY LAW AND GENDER IDENTITY

FAMILY LAW AND GENDER IDENTITY

including the rights of the children and parents

Children's rights

X and Y v. Romania

Refusal to recognise a change of gender identity

The authorities’ refusal to legally recognise a change of gender identity in the absence of surgery breached Article 8 of the Convention

Z.H. and R.H. v. Switzerland

Refusal to recognise marriage

  • Violation of Article 8 (right to respect for private and family life)
  • Application No. 60119/12 (judgment 8 December 2015 - Final 8 March 2016)
  • 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.

Contact / Custody

Neves Caratão Pinto v. Portugal

Determination of parental responsibility

  • Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
  • Application No. 28443/19 (13 July 2021)
  • Press release 

The case concerns a protective measure by which the applicant’s twin children were placed in the care of other family members. It also concerns the subsequent proceedings for the determination of parental responsibility, which resulted in the same family members being provisionally assigned primary parental responsibility in respect of the twins.

A.M. and Others v. Russia

Contact rights of parent undergoing gender reassignment

  • Violation of Articles 8 (right to respect for private and family life) and 14 (Prohibition of discrimination)
  • Application no. 47220/19 (6 July 2021)
  • Press Release

The case concerns the restriction of the applicant’s parental rights in respect of her children and her being deprived of contact with them. The applicant alleged that her gender identity and the fact that she had undergone gender transition had played a crucial role in that restriction, even though there had been no evidence before the courts that her contact with the children would be harmful for their psychological health and development.

Naltakyan v. Russia

Refusal to return son to his family/Refusal of contact rights

The applicant, Zaven Volodyayevich Naltakyan, is a Russian national who was born in 1972 and lives in Miramas (France). The case concerned the applicant’s learning of his child’s survival at birth only a year and a half later, following receipt of a claim for removal of his parental authority over the child in the context of adoption proceedings, and his unsuccessful applications for access to and custody of his child.

Relying in particular on Article 8 (right to respect for private and family life) of the Convention, the applicant complained of the authorities’ decisions refusing his son’s return to his family and refusing him contact rights with his son.

Violation of Article 8 (on account of the authorities’ decisions refusing the return of the applicant’s son to his family) Violation of Article 8 (on account of the refusal of contact rights) Just satisfaction: No request for just satisfaction made

D v. France

Recognition of legal child-parent relationship

  • Non-violation of Article 8 (right to respect for family life)
  • Non-violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8
  • Application No. 11288/18 (judgment of 16 July 2020, available in French only)
  • Press Release

The case concerned the refusal to record in the French register of births, marriages and deaths the details of the birth certificate of a child born abroad through a gestational surrogacy arrangement in so far as the certificate designated the intended mother, who was also the child’s genetic mother, as the mother.

The Court pointed to its finding in advisory opinion no. P16-2018-001 that adoption produced similar effects to registration of the foreign birth details when it came to recognising the legal relationship between the child and the intended mother.

M.K. v. Greece

Refusal to honour child's custody rights

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.

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.

In the Court’s view, the wishes expressed by a child who had sufficient understanding were a key factor to be considered in any judicial or administrative proceedings affecting him or her. In particular, Article 13 of the Hague Convention provided that the authorities could refuse the order to return a child if the child objected and had attained an age and degree of maturity to allow his views to be taken into account.

Nazarenko v. Russia

Exclusion of non-biologial father from child's life

  • Violation of Article 8 (right to respect for private and family life)
  • Application No. 39438/13 (judgment 10 June 2015 - Final 16 October 2015)
  • Press Release

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).

Khoroshenko v. Russia

Prisoner's right to family life

  • Violation of Article 8 (right to respect for private and family life)
  • Application No. 41418/04 (judgment 10 June 2015)
  • Press Release

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.

Polidario v. Switzerland

Breach of family life by refusing to grant residence permit

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.

Adoption

Abdi Ibrahim v. Norway

Adoption of child against mother's wishes

The case concerns the decision of the Norwegian authorities and courts to allow the adoption of a child by a foster family, against the wishes of his mother.

Uzbyakov v. Russia

Refusal to recognise paternity rights or revoke adoption order

The case concerned the applicant’s complaint about his daughter being adopted by another family and the refusal by the courts to overturn that decision. The Court found deficiencies in the proceedings for the daughter’s adoption, the applicant’s subsequent paternity claim and his request to revoke the adoption order.

Overall, the courts had failed to carry out an in-depth examination of the relevant factors and fairly balance the rights of all the individuals involved with due regard to the circumstances of the case.

Strand Lobben and others v. Norway

Removal of parental authority and son's adoption

The case concerned the removal of a mother’s parental authority and the adoption of her eldest son. The applicants are T. Strand Lobben, born in 1986, her children X and Y, and her parents, S. Graff Lobben and L. Lobben. They are Norwegian.

X and Others v. Austria

Adoption refusal to partner of homosexual couple

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).

Surrogacy / Filiation

Mennesson v. France and Labassee v. France

French law's refusal to recognise filiation established in the United States

  • Violation of Articles 8 (right to respect for private and family life) and 41 (just satisfaction)
  • Application Nos. 65192/11 and 65941/11 (judgment 26 June 2014 - Final 26 September 2014)
  • Press Release

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.

Family proceedings

Gruba and Others v. Russia

Gender discrimination

Violation of Articles:

  • Article 14 Prohibition of discrimination (Article 14 - Discrimination)
  • Article 8 (8-1 - Respect for family life)
  • Article 6 Right to a fair trial (Article 6 - Civil proceedings Article 6-1 - Fair hearing)

The case concerns the difference in entitlement to parental leave between policemen and policewomen. For financial reasons, given that the applicant’s wife had a higher salary than him, the applicant decided to take parental leave, however his request was refused because parental leave could be granted to a policeman only if his children were left without maternal care.

Hammerton v. The United Kingdom

Unlawful detention

  • Violation of Articles 5 § 1 (right to liberty and security), 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing)
  • Application No. 6287/10 (judgment 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.

 

NATIONALITY

NATIONALITY

Ghoumid and others v. France and 4 others

Deprivation of nationality after terrorism-related offences

  • No violation of Article 8 (right to respect for private and family life)
  • Application No. 52273/16 (judgment of 16 November 2020)
  • Press Release

The case concerned five individuals, formerly having dual nationality, who were convicted of participation in a criminal conspiracy to commit an act of terrorism.

The Court ruled that the applicants already had dual nationality and the decision to deprive them of French nationality had not had the effect of making them stateless.

WORK RELATED

WORK RELATED

Catalan v. Romania

Whistleblowing - public servant

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 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.

Matúz v. Hungary

Whistleblowing - journalist/book author

  • Violation of Article 10 (freedom of expression)
  • Application No. 73571/10
  • Dates: 21 October 2014 - Final 21 January 2015
  • Case details

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.

 

NEW TECHNOLOGY

Ahmet Yildirim v. Turkey

Access Google blocked

  • Violation of Article 10 (freedom of expression)
  • Application No. 3111/10 (judgment 18 December 2012 - Final 18 March 2013)
  • Press Release

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.