C.I.R.D.C.E.
OBSERVATORY ON FUNDAMENTAL RIGHTS IN EUROPE
Newsletter n. 23
15 November 2010
Update on the case-law and other acts, relevant to the protection of fundamental rights, added to the website www.europeanrights.eu
For the acts of the European Union we have included:
· The Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings;
· The European Parliament Resolution of 7 October 2010 on the World day against the death penalty;
· The European Parliament Resolution of 22 September 2010 on enforcement of intellectual property rights in the internal market;
· The European Parliament Resolution of 9 September 2010 on the situation of Roma and on the freedom of movement in the European Union;
· The Commission Report of 8 September 2010 on the application of the Directive on minimum standards on procedures for granting and withdrawing refugee status;
· The European Parliament Resolution of 7 September 2010 on the social integration of women belonging to ethnics minority groups.
For the Council of Europe, we highlight:
with regard to the Committee of Ministers:
· The Resolution CM/ResChs (2010) of 16.09.2010 on the collective complaint n. 41/2007 lodged by Mental Disability Advocacy Centre (MDAC) against Bulgaria:
With regard to the Parliamentary Assembly:
· The Resolution 1675 and the Recommendation 1940 of 8.10.2010 on gender-related claims for asylum;
· The Resolution 1760 of 7.10.2010 on the recent rise in national security discourse in Europe: the case of Roma;
· The Resolution 1763 of 7.10.2010 on the right to conscientious objection in lawful medical care;
· The Resolution 1761 of 7.10.2010: guaranteeing the right to education for children with illnesses or disabilities;
· The Resolution 1754 and the Recommendation 1933 of 5.10.2010 on the fight against extremism: achievements, deficiencies and failures;
· the Recommendation 1934 of 5.10.2010 on child abuse in institutions: ensuring full protections of the victims;
· The Resolution 1756 of 5.10.2010 on the need to avoid duplication of the work of the Council of Europe by the European Union Agency for Fundamental Rights.
With regard to the jurisprudence, we highlight:
For the Court of Justice, the decisions:
· 21 October 2010, case C-306/09, I. B., on the European Arrest Warrant and the surrender procedures between Member States;
· 21 October 2010, case C-205/09, Eredics, on the meaning of victim in criminal proceedings, laid down in the framework decision 2001/220/JAI;
· 14 October 2010, case C-345/09, J.A. van Delft, on social security, pensions and freedom of movement for persons;
· 14 October 2010, case C-16/09, Gudrun Schwemmer, on social security and family benefits;
· 14 October 2010, case 243/09, Günter Fuß, which recalls the Charter of fundamental rights, and case C-428/09, Union Syndacales Solidaires Isère, both on the protection of the safety and health of workers and on maximum weekly working time;
· 12 October 2010, case C-45/09, Gisela Rosemblandt, and case C-499/08, Ingeniørforeningen i Danmark, both on the prohibition of discrimination on grounds of age;
· 7 October 2010, case C-515/08, Santos Palhota and others, on freedom to provide services;
· 7 October 2010, case C-162/09, Lassal, on freedom of movement for persons and the right to permanent residence;
· 7 October 2010, case C-224/09, Nussbaumer, on the implementation of minimum health and safety requirements on temporary and mobile construction sites;
· 5 October 2010, case C-400/10 PPU, J.McB., on the child’s rights and the right to the respect for family life, which employs the Charter of Fundamental Rights for the interpretation of the regulation 2201/2003 in the matter of parental responsibility;
· 5 October 2010, case C-512/08, Commission vs France, on the right to reimbursement of medical expenses;
· 30 September 2010, case C-104/08, Pedro Manuel Roca Álvarez, on equal treatment between male and female workers in the matter of parental leave;
· 16 September 2010, case 149/10, Zoi Chatzi, on parental leave and the prohibition of discrimination, which employs the Charter of Fundamental Rights as parameter of the legitimacy of a framework agreement;
· 14 September 2010, case C-550/07 P, Akzo Nobel Chemicals Ltd, on the protection of privacy of communications, which the Charter of Fundamental Rights;
· 9 September 2010, case 64/08, Ernst Engelmann, on freedom of establishment and freedom to provide services in the system of concessions for the operation of games;
· 8 September 2010, case C-409/06, Winner Wetten, joined cases C-316/07, C-358/07, C-359/07, C-360/07, C-409/07, C-410/07, Markus Stoß, Kulpa Automatenservice Asperg GmbH, SOBO Sport & Entertainment GmbH, Andreas Kunert, Avalon ServiceOnlineDienste GmbH, Olaf Amadeus Wilhelm Happel, case C-46/08, Carmen Media Group Ltd, on freedom of establishment and freedom to provide services in the organization of bets in sporting competitions;
We would also like to highlight:
· The decisions of the European Union Court of 30 September 2010, case T-85/07, Kadi, on the rights of defence, and of 9 September 2010, case T-348/07, Stichting Al-Aqsa on black lists;
· The Conclusions of the Advocate General Sharpston of 30 September 2010, case C-34/09, Gerardo Ruiz Zambrano, in the matter of citizenship, non discrimination, right to movement and residence and right to family life, which often recalls the Charter of Rights;
· The Conclusions of the Advocate General Kokott of 30 September 2010, case C-236/09, Association Belge des Consommateurs, in the matter of equal treatment and non discrimination between men and women, which often recalls the Charter of Rights.
For the European Court of Human Rights, the decisions:
· 14.10.2010 A vs. Croatia (no 55164/08), according to which a woman had not been sufficiently protected by the Croatian authorities against the domestic violence of her mentally-ill ex-husband;
· 14.10.2010 Logvinenko vs. Ukraine (no 13448/07) and A.B. vs Russia (no 1439/06), on the lack of medical treatments for prisoners suffering from HIV in Ukraine and Russia;
· 14.10.2010 Brusco vs. France (no 1466/07), on the right to remain silent and to be defended by a lawyer;
· 12.10.2010 Karatepe vs. Turkey (no 20502/05), according to which the authorities had used excessive force and had not given the needed treatment during an unlawfully long pre-trial detention;
· 12.10.2010 Maria Atanasiu and others vs. Romania (no 30767/05 and 33800/06), pilot case concerning the nationalisations of property during the communist period in Romania, in which the Court has stated the violation of art. 1 of the Protocol 1 and in one case also of art. 6§1 ECHR, has sentenced the State to compensation and has enjoined the State to adopt within 18 months adequate measures in order to guarantee the rights of the persons, who are in situations similar to the applicants’ ones;
· 12.10.2010 Nur Radyo Ve Televizyon Yayıncıliğı A.Ş. vs. Turkey (no2) (no 42284/05), with which the interdiction imposed to a broadcasting company because of the broadcasting of religious programmes has been deemed non proportionate;
· 12.10.2010 Saaristo and others vs. Finland (no 184/06), on freedom of expression;
· Two decisions on disappearances in Chechnya of 07.10.2010, Merjouïeva and others vs. Russia (no 27315/06 e 27449/06);
· 07.10.2010 Konstantin Markin vs Russia (no 30078/06), according to which the denial of parental leave to a male soldier, as opposed to female soldier, was discriminatory;
· 05.10.2010 DMD GROUP, a.s. vs. Slovakia (no. 19334/03) on the right to access to a Court established by law;
· 30.09.2010 Kerimova vs. Azerbaijan (no 20799/06) on the right to free elections;
· 28.09.2010 J.M. vs. the United Kingdom (no. 37060/06), according to which the law on child maintenance, prior to the introduction of the Civil Partnership Act, was discriminatory in case of same-sex relationships;
· 21.09.2010 Gülizar Tuncer vs. Turkey (no 23708/05), according to which the necessity of using force during a demonstration had not been proved;
· 21.09.2010 İsmail Altun vs. Turkey (no 22932/02), according to which the use of force (serious) against the applicant during a prisoners’ revolt was not justified;
· 14.09.2010 Hyde Park and others vs. Moldova (n° 5 and 6), (n° 6991/08 and 15084/08) on the right to assembly and association, according to which the police repression and arrests during three demonstrations of an NGO have been disproportionate;
· 14.09.2010 Sanoma Uitgevers B.V. vs. the Netherlands (no 38224/03) on freedom of expression, according to which the seizure of materials coming from confidential sources of the journalists was illegal;
· 14.09.2010 Florea vs. Romania (no 37186/03), according to which the applicant’s subjection to passive smoking during detention, due to overcrowding, was in breach of the Convention;
· 14.09.2010 Dink vs. Turkey (no 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09), according to which the authorities have not respected their obligation to protect the life and freedom of expression of the journalist Firat (Hrant) Dink;
· 10.09.2010, decision of the Grand Chamber McFarlane vs. Ireland (no 31333/06), according to which the Irish law does not offer any effective remedy against the unjustified length of the criminal proceedings;
· 09.09.2010 Xiros vs. Greece (no 1033/07) on the shortcomings in the treatment provided to an ill prisoner;
· 02.09.2010 Shopov vs. Bulgaria (no 11373/04), according to which the imposition for five years on the applicant of psychiatric treatments has violated his right to private and family life;
· 02.09.2010 Danev vs. Bulgaria (no 9411/05), according to which the Courts have shown an excessive formalism in order to establish the existence of moral damage caused by illegal detention;
· 02.09.2010 Rumpf vs. Germany (no 46344/06), first pilot case against Germany, according to which the length of criminal proceedings in that Country amounts to a structural problem;
· 02.09.2010 Uzun vs. Germany (no 35623/05), according to which the surveillance through the GPS of a person suspected of serious violations was justified.
We would also like to highlight:
· Two decisions on admissibility of 24.09.2010, Nagovitsyn and Nalgiyev vs. Russia (no 27451/09 and 60650/09) and Fakhretdinov and others vs. Russia (no 26716/09, 67576/09 and 7698/10), according to which the application lodged by Russia following a pilot decision of the Court must be exhausted before taking action in front of the said Court;
· The decision on admissibility of 15.09.2010, Gas and Dubois vs. France (no 25951/07), with which the Court has deemed admissible the application of a same-sex couple concerning the adoption of a child.
For the extra-European area we have included:
· The decision of the United States District Court for the Northern District of California of 04.08.2010, which has established the illegitimacy of Proposition 8, which prohibits marriages between homosexuals, because in contrast with the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, asserting that only marriages between men and women are valid and recognized in California; the Court has also deemed irrelevant the approval by referendum of Proposition 8, stating that “fundamental rights cannot be subjected to vote”;
· The decision of the Trial Chamber III of the International Criminal Tribunal for Rwanda (ICTR) of 03 August 2010, which has found Dominique Ntawukulilyayo responsible for complicity in genocide and direct and public incitement to commit genocide, sentencing him to 25 years’ imprisonment: the Chamber has stated that in April 1994 Dominique Ntawukulilyayo, as sub-prefect of Gisagara, promised help and protection to hundreds of Tusti civilians, inducing them to take refuge in the local market, where he then transported troops of soldiers who, together with others, killed thousands of Tutsi;
· The first sentence issued on 26.07.2010 by the Extraordinary Chambers in the Courts of Cambodia, created under the aegis of the UN in order to judge upon crimes committed by the Khmer Rouge regime; the Trial Chamber has sentenced the former officer Kaing Guek Eav to 35 years’ imprisonment for crimes against humanity and serious violations of the Conventions of Geneva of 1949: the Court has ascertained that at least 12.272 persons were arrested and killed or died after having been tortured in the security centre S-21, at the head of which there was the accused person;
· The decision of the Pre-Trial Chamber I of the International Criminal Court (ICC) of 12 July 2010, which has issued a second international arrest warrant against the President of Sudan, Omar Hassan Ahmad Al Bashir, deeming him responsible for genocide against three different ethnic groups in Darfur: such measure does neither revoke nor substitute the first international arrest warrant, which is still valid, issued against Al Bashir in March 2009 for war crimes and crimes against humanity;
· The order of the Trial Chamber I of the International Criminal Court (ICC) of 8 July 2010, which has stated the suspension (indefinite) of the trial in the case The Prosecutor vs Thomas Lubanga Dyilo, deeming that a fair trial against the accused person is no longer possible, because of the Prosecutor’s non-compliance with a former order issued by the same judge, who had ordered the prosecutor’s office to communicate, confidentially, to the accused person’s defence, the name and every other information connected to the identification of an intermediary used during the investigation;
· The decision of the Supreme Court of India of 05.05.2010, which, also mentioning the ECHR, has stated the incompatibility of certain investigation techniques (narcoanalysis, polygraph test and Brain Electrical Activation Profile) with the citizens’ fundamental freedoms: the court has established that the forced subjection to such techniques would amount to cruel, inhuman and degrading treatment and it would violate the principles of fair trial, and in particular of the right not to be compelled to self-incrimination.
As far as case law of national courts is concerned, the following decisions must be highlighted:
· Austria: the decision of the Verfassungsgerichtshof (Constitutional Court) of 27.04.2010, which has stated, in application of art. 144A of the Austrian Constitution (which provides the right to plead to the Constitutional Court in order to appeal against decisions in the matter of right to asylum), the annulment of the measure of a Court, which in January 2009 had denied the asylum to an Armenian citizen: the decision has stated not only that the appellant had the right to asylum, but also that the Government was responsible for having denied it, in violation of art. 8 of the ECHR;