Observatory on Fundamental Rights in Europe

OBSERVATORY ON FUNDAMENTAL RIGHTS IN EUROPE

Newsletter n. 33

15 July 2012

Below are the main updates concerning case-law and acts relevant to the protection of fundamental rights, as published in the web site www.europeanrights.eu

For the acts of the European Union we have included:

·  The third European Commission annual report (2011) of 30.05.2012 on immigration and asylum;

·  The European Parliament Resolution of 24.05.2012 on the fight against homophobia in Europe;

·  The European Parliament Resolution of 24.05.2012 with recommendations to the Commission on the application of the principle of equal pay for male and female workers for equal work or work of equal value;

·  The Directive of 22.05.2012 on the right to information in criminal proceedings;

·  The European Parliament Resolution of 22.05.2012 on a strategy for strengthening the rights of vulnerable consumers;

·  The European Parliament Resolution of 22.05.2012 on an EU approach to criminal law;

·  The European Parliament Resolution of 20.04.2012 on women and climate change;

·  The European Parliament Resolution of 18.04.2012 on the Annual Report on Human Rights in the World in 2010 and the European Union's policy on the matter, including the implications for the EU's strategic human rights policy;

·  The study by the European Parliament Civil liberties, Justice and Home Affairs Committee of 1.04.2012 on the jurisprudential trends of the Court of Justice and the European Court of Human Rights in the matter of fundamental rights;

·  The European Parliament Resolution of 29.03.2012 on the EU Citizenship Report 2010: dismantling the obstacles to European Union citizens' rights.

For the Council of Europe we would like to highlight the following resolutions and recommendations of the Parliamentary Assembly:

·  The Resolution 1894 of 29.06.2012 on “The inadmissibility of restrictions on freedom of movement as punishment for political positions”;

·  The Recommendation 2003 of 28.06.2012 on “Roma migrants in Europe”;

·  The Resolution 1891 du 27.06.2012 on “The situation of human rights defenders in Council of Europe member States”;

·  The Resolution 1888 of 27.06.2012 on “The crisis of democracy and the role of the State in today’s Europe”;

·  The Resolution 1887 of 26.06.2012 on “Multiple discrimination against Muslim women in Europe: for equal opportunities”;

·  The Resolution 1886 of 26.06,2012 on “The impact of the economic crisis on local and regional authorities in Europe”;

·  The Resolution 1885 of 26.06.2012 on “The young generation sacrificed: social, economic and political implications of the financial crisis”.

For the Court of Justice, we have added the decisions:

·  14.06.2012, case C-618/10, Banco Español de Crédito SA, on the non-application by a national judge of an unfair contract term stipulated with a consumer;

·  14.06.2012, case C-606/10, Association nationale d’assistance aux frontières pour les étrangers (ANAFE), on the temporary residence permit and the meaning of “re-entry visa”;

·  14.06.2012, case C-542/09, European Commission vs Kingdom of the Netherlands, on freedom of movement for workers and the residence requirement in order to grant to the migrant workers’ children the access to funding for higher educational studies;

·  12.06.2012, joined cases C-611/10 and C-612/10, Waldemar Hudzinski and Jaroslaw Wawrzyniak, on freedom of movement for workers and the grant of family benefits;

·  07.06.2012, case C-132/11, Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH, on equal treatment in employment and occupation;

·  22.05.2012, case C-348/09, P.I., on freedom of movement and residence and on the possibility of expulsion in case of offences constituting an serious attempt to a core interest of the society;

·  10.05.2012, case C-39/10, European Commission vs Estonia, on freedom of movement for workers and discrimination between resident and non-resident taxpayers;

·  10.05.2012, joined cases C-357/10, C-358/10 and C-359/10, Duomo Gpa Srl, Gestione Servizi Pubblici Srl, Irtel Srl, on freedom of establishment, freedom to provide services and the concession relating to the payment, assessment and collection of taxes by local authority;

·  03.05.2012, case C-337/10, Georg Neidel, on the right to an allowance in lieu of paid annual leave which had not been taken at the time of the worker’s retirement;

·  03.05.2012, case C-620/10, Migrationsverket vs Kastrati, on the procedure for determining the Member State responsible for examining an asylum application by third-country national;

·  02.05.2012, case C-406/10, SAS Institute Inc, on intellectual property and legal protection of computer programs;

And for the General Court the decisions:

·  22.05.2012, case T-300/10, Internationaler Hilfsfonds eV, on the right to access to documents, the protection of privacy, the protection of the decision-making process and the principle of good administration;

·  22.05.2012, case T-344/08, EnBW Energie Baden-Württemberg A, on the right to access to documents, the protection of the purpose of investigations, the protection of the commercial interests of a third party and the protection of the decision-making process;

·  04.05.2012, case T-529/09, Sophie in ’t Veld, on the right to access to documents, the protection of the public interest in the field of international relations and the protection of legal advice;

and the Opinions of the Advocate General:

·  12.06.2012, case C-617/10, Åklagaren, on the ne bis in idem principle, the application of the EU Charter of Fundamental Rights and its relation with the ECHR;

·  15.05.2012, case C-40/11, Yoshikasu Iida, on the right of a third-country national to reside in his child’s Member State of origin in the event of custody transferral to the other parent.

For the European Court of Human Rights we would like to highlight the decisions:

·  07.06.2012, K vs Germany, (n. 61827/09) and G vs Germany, (n. 65210/09), in the matter of preventive detention, ordered following a decision of a German Court, deemed in breach of article 7.1;

·  07.06.2012, Centro Europa 7 S.r.l. and Di Stefano vs Italy, Grand Chamber judgement (n. 38433/09), in which the Court stated the violation of articles 10 (freedom of expression) and 1 of the Additional Protocol n. 1 (protection of property): the case concerned an Italian TV company's inability to broadcast, despite having a broadcasting licence and television frequencies assigned to it;

·  31.05.2012, Taron vs Germany, (n. 53126/07) and Garcia Cancio vs Germany, (n. 19488/09), on the length of proceedings before German Courts: the Court stated that the applicants should have used the new national procedure, come into force on 03.12.2011, in order to complain against the length of the proceeding;

·  31.05.2012, Diriöz vs Turkey, (n. 38560/04), according to which the fact that the prosecutor stands on a raised platform in the courtroom does not infringe the principle of equality of arms between the prosecutor and the accused;

·  29.05.2012, Flores Cardoso vs Portugal, (n. 2489/09), according to which the reimbursement of a sum of money deposited at the Portuguese consulate, at the time when Mozambique became independent, without regard for inflation and the loss of interests, did not amount to a violation of the right to property, but only of the right to a fair trial: three thousand people would have found themselves in the same situation when the civil war broke out in 1976;

·  29.05.2012, UTE Saur Vallnet vs Andorra, (n. 16047/10), according to which the High Court judge's membership of a Barcelona law firm, providing paid services to the Andorran Government in other proceedings, violated the right to an impartial tribunal;

·  29.05.2012, Julin vs Estonia, (n. 16563/08), on the detention conditions of a person, who had been handcuffed to the bed for 9 hours, deemed in breach of article 3 of the Convention;

·  22.05.2012, Scoppola vs Italy (n. 3), Grand Chamber judgement (n. 126/05), according to which the voting ban imposed on the applicant following a criminal conviction was not disproportionate in the light of the same right provided by the Convention: the Court stated that, unlike what had been stated in the case Hirst (n.2) vs Great Britain in which the Court had asserted the violation of article 3 of the Additional Protocol n. 1, in the Italian legislation the forfeiture of the prisoners‘ right to vote following the criminal conviction is not a general, automatic, nor indiscriminate measure, instead it is adapted to the duration of the conviction and the particularity of the case;

·  22.05.2012, Santos Nunes vs Portugal, (n. 61173/08), on the Portuguese authorities lack of diligence in enforcing a judicial decision concerning a child custody;

·  22.05.2012, Idalov vs Russia, Grand Chamber judgement (n. 5826/03) on the conditions of the applicant’s detention on remand, in a case where the applicant was placed in pre-trial detention for more than a year in inhuman conditions, which was deemed an unjustified measure;

·  15.05.2012, Altunay vs Turkey, (n. 42936/07), in which the Court stated that the new jurisprudence of the Turkish Court of Cassation now allows, starting from November 2009, to ask for compensation for the annulment of property deeds, with regard to lands marked as forests;

·  15.05.2012, S.F. and others vs Sweden, (n. 52077/10), on the refusal to grant asylum to an Iranian dissident;

·  15.05.2012, Labsi vs Slovakia, (n. 33809/08), on the expulsion to Algeria of a man convicted for terrorism, which would have exposed him to the risk of inhuman and degrading treatments;

·  15.05.2012, Kaverzin vs Ukraine, (n. 23893/03), in which the Court stated that Ukraine must reform its national legal system to eradicate the problem of inhuman and degrading treatments during police custody: the Court underlined the necessity to modify the national legal system since there have already been 40 cases against Ukraine on such matter and more than 100 are still pending;

·  10.05.2012, Putintseva vs Russia, (n. 33498/04), according to which the use of a gun against a soldier who tried to escape from military service was unnecessary and it amounted to a violation of the right to life;

·  10.05.2012, Frasilă Ciocirlan vs Romania, (n. 25329/03), in the matter of freedom of expression;

·  03.05.2012, M.S. vs United Kingdom, (n. 24527/08), according to which the prolonged police detention of a mentally-ill man without adequate medical care amounts to the violation of articles 3 and 13 of the Convention;

·  03.05.2012, Mago and others vs Bosnia Herzegovina, (n. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09), on the occupation of pre-war properties and their non restitution to the legitimate owners;

·  24.04.2012, Yordanova and others vs Bulgaria, (n. 25446/06), on the expulsion of Roma people from a settlement within capital city, deemed in breach of the Convention;

We finally would like to highlight the Press Release issued by the Registrar of the Court of 22.05.2012, which clarifies the implications for the Member States of the Scoppola vs Italy (n. 3) Grand Chamber judgment.

For the extra-European area we have included:

·  The decisions of the Appeals Chamber of the International Criminal Court for Rwanda of 08.05.2012, cases Aloys Ntabakuze vs the Prosecutor, Idelphonse Hategekimana vs the Prosecutor and Gaspard Kanyarukiga vs the Prosecutor, which reduced the sentence against the first accused person, while it upheld the sentence imposed by the first instance court to the other two accused persons;

·  The decision of the Trial Chamber II of the Special Court for Sierra Leone of 26.04.2012, case Prosecutor vs Charles Ghankay Taylor, which sentenced the accused person, who was the former president of Liberia, for having aided and abetted the rebels of the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) in the commission of war crimes and crimes against humanity during the ten-year long civil war in Sierra Leone;

·  The order of the Superior Court of the County of Cumberland in North Carolina of 20.04.2012, which commuted a death sentence into a life imprisonment conviction, deeming that the racial prejudice had a relevant role in the former decision;

·  The decision of the Court of Appeal for Ontario of 26.03.2012, which stated the constitutional illegitimacy of some norms of the criminal code, which prohibited brothels as well as activities linked to prostitution (excluding the exploitation of prostitutes), because deemed limitative of the prostitutes’ safety;

·  The decision of the Trial Chamber I of the International Criminal Court of 14.03.2012, case The Prosecutor vs Thomas Lubanga Dyilo, which sentenced the accused person, who was the former president of the Union of Congolese Patriots (“UCP”) and leader of the Patriotic Forces for the Liberation of Congo (“PFLC”), for the war crimes of enlisting and conscripting of children and using them to participate actively in hostilities;

·  The decision of the Argentinean Supreme Court of 13.03.2012, which stated the decriminalisation of abortion in case of rape;

·  The decision of the Inter-American Court of Human Rights of 27.02.2012, case González Medina y Familiares vs Dominican Republic, which sentenced the State for the violation of the right to life, personal freedom, personal integrity and effective remedies in relation to the forced disappearance of professor Narciso González Medina, which took place on 26th of May 1994 during the presidency of Joaquín Balaguer; and the decision of 24.02.2012, case Atala Riffo y Niñas vs Chile, which, recalling a consolidated jurisprudence of the Court of Strasbourg, established that the decisions of the Juzgado de Menores de Villarica before, and of the Chilean Supreme Court of Justice after, to revoke the custody of the children from Mrs Karen Atala Riffo, because of her sexual orientation and the cohabitation with her girlfriend, amounted to a discriminatory treatment and an unlawful interference in her right to the respect for private and family life;

·  The decision of the American Supreme Court of 11.01.2012, which recognizes the existence of a ”ministerial exception”, included in the First Amendment, which precludes the application of the laws against discrimination in the workplace to claims concerning business relations between a religious institution and its ministers.

As far as case law of national courts is concerned, the following decisions must be highlighted:

·  Austria: the decision of the Verfassungsgerichtshof of 14.03.2012, which deems that the rights protected by the European Union Charter of Fundamental Rights have the same value of the rights provided by the Austrian Constitution;