Observatory on the Respect for Fundamental Rights in Europe

OBSERVATORY ON THE RESPECT FOR FUNDAMENTAL RIGHTS IN EUROPE

Newsletter n. 36

15 January 2013

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

For the acts of the European Union we have included:

The European Parliament Resolution of 22.11.2012 on the declaration of acceptance by the Member States, in the interest of the European Union, of the accession of eight third-countries to the 1980 Hague Convention on the Civil Aspects of International Child Abduction;
The European Parliament Legislative Resolution of 20.11.2012 on the draft Council Directive amending Directive 93/109/EC of 6 December 1993, as regards certain detailed arrangements for the exercise of the right to stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals;
European Parliament Resolution of 20.11.2012 on protecting children in the digital world;
European Parliament Resolution of 23.10.2012 on passenger rights in all transport modes.

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

of the Parliamentary Assembly:

the Resolution 1911 of 30.11.2012, “The status of the chairpersons of political groups in committees (Rule 18.5 of the Rules of Procedure of the Assembly)”;
the Resolution 1910 of 30.11.2012, “Ngos’ role in combating intolerance, racism and

xenophobia”;

the Resolution 1909 of 30.11.2012, “Intercountry adoption: ensuring that the best interests ofthe child are upheld”;
the Resolution 1908 of 30.11.2012, “Human rights and family courts”;

and of the Committee of Ministers:

the Recommendation CM/Rec(2012)13 of 12.12.2012 on ensuring quality education.

For the Court of Justice, we have addedthe decisions:

19.12.2012, case C-363/11, Epitropos tou Elegktikou Synedriou sto Ypourgeio Politismou kai Tourismou, on the concept of ‘court or tribunal of a Member State’ competent to request a preliminary ruling to the Court of Justice;
19.12.2012, case C-364/11, Mostafa Abed El Karem El Kott, Chadi Amin A Radi, Hazem Kamel Ismail, on the grant of the refugee status to stateless persons of Palestinian origin;
19.12.2012, case C-68/11, European Commission vs. Italy, on the protection of the environment and Italy’s failure to fulfil the obligations in relation to the values for concentrations of PM10 in the air, as provided by Directive 1999/39/EC;
19.12.2012, case C-279/11, European Commission vs. Ireland, and C-374/11, European Commission vs. Ireland, both on the failure to take the necessary measures to comply with the judgment of the Court of Justice in the matter of environment;
13.12.2012, case C-379/11, Caves Krier Frères Sàrl, on the freedom of movement for workers, the registration with a placement office of a Member State subjected to the residence condition and non-discrimination;
6.12.2012, joined cases C-356/11 and C-357/11, O. and S., on the right to family reunification, the right of residence of third-country nationals, the right to the respect for family life and the children’s best interest;
6.12.2012, case C-430/11, Md Sagor, on the illegal stay of third-country nationals and on possible sanctions;
6.12.2012, case C-152/11, Johann Odar, on equal treatment in employment and occupation and compensation on termination of employment for workers close to retirement;
6.12.2012, joined cases C-124/11, C-125/11 and C-143/11, Karen Dittrich, Robert Klinke, Jörg-Detlef Müller, on equal treatment in employment and working conditions;
27.11.2012, case C-370/12, Thomas Pringle, on the compatibility of the European Stability Mechanism Treaty with the EU law;
27.11.2012, case C-566/10 P, Italia vs. European Commission, on discrimination on grounds of language;
22.11.2012, case C-136/11, Westbahn Management GmbH, on the rights of rail transport passengers;
22.11.2012, case C-410/11, Pedro Espaga Sánchez and others, on the right to compensation of a passenger in the event of loss of the baggage checked in by another passenger;
22.11.2012, case C-139/11, Joan Cuadrench Moré, on the cancellation of the flight and the right of the passenger to compensation;
22.11.2012, case C-277/11, M.M., on the lawfulness of the procedure for processing an application for subsidiary protection following the rejection of an application for refugee status and the right to adversarial procedure;
22.11.2012, case C-385/11, Isabel Elbal Moreno, on equal treatment for male and female workers and discrimination on grounds of sex;
15.11.2012, case C-417/11 P, Nadiany Bamba, on the freezing of funds, rights of the defence, right to an effective legal remedy and on the right to the respect for property;
15.11.2012, joined cases C-539/10 P and C-550/10 P, Stichting Al-Aqsa and the Netherlands, on the freezing of assets and the right to property;
8.11.2012, joined cases C-229/11 and C-230/11, Alexander Heimann and Konstantin Toltschin, on the reduction of paid annual leave on the basis of short-time working;
8.11.2012, caseC-40/11, Yoshikazu Iida, on the right of residence of a third-country national in the Member State of origin of his wife and daughter and on the impossibility to found such right on their EU citizenship in the event of moving to another Member State;
8.11.2012, case C-461/11, Ulf Kazimierz Radziejewski, on the freedom of movement for workers and non-discrimination;
8.11.2012, case C-268/11, Atilla Gülbahce, on the retroactive withdrawal of a residence permit of a Turkish worker;
6.11.2012, case C-286/12, European Commission vs. Hungary, on the reduction of the retirement age of Hungarian judges and non-discrimination on grounds of age;
6.11.2012, C-199/11, Europese Gemeenschap vs. Otis NV and others, on the possibility that the European Commission represents the European Union before a national court hearing a civil action for damages in respect of loss caused to the European Union by an agreement or practice prohibited;
6.11.2012, case C-245/11, K, on the determination of the Member State as responsible for the examination of an asylum application lodged by a third-country national, who is affected by a serious illness;
4.10.2012, case C-321/11, Germán Rodríguez Cachafeiro, María de los Reyes MartínezReboredo Varela-Villamor, on the right to compensation for passengers in the event of denied boarding subsequent to the cancellation of the passengers’ boarding card by an air carrier because of the anticipated delay to an earlier flight.

and the Opinions of the Advocate General:

8.11.2012, case C-415/11, Mohamed Aziz, on onerous contract clauses and consumers protection.

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

8.01.2013,Torreggiani and others vs. Italy, (n. 43517/09), with which the Court sentenced and called on Italy to resolve the structural problem of overcrowding in prisons, which is incompatible with the Convention: the Court’s pilot judgment concluded that the Government must put in place, within one year from the date on which the present judgment became final a combination of effective remedies capable of affording, in accordance with the Convention, adequate and sufficient redress in cases of overcrowding in prison;
8.01.2013,Baltiņš vs. Latvia, (n. 25282/07), with which the Court established that Latvian courts should have examined the complaint of a man convicted of drug offence that he had been incited by an undercover police agent to commit such offence;

18.12.2012,Ahmet Yıldırım vs. Turkey, (n. 3111/10), in which the Court held that there wasa violation of the right to freedom of expression caused by the restriction of internet access without a strict legal framework regulating the scope of the ban;
18.12.2012,Aslakhanova and others vs. Russia, (n. 2944/06, 8300/07, 42509/10, 50184/07 and 332/08), in which the Court found the non-investigation of the disappearances in Russia's North Caucasus a systemic problem and recommended measures to address theviolations of fundamental rights;
13.12.2012,de Souza Ribeiro vs. France, (n. 22689/07), on the violation of the right to an effective remedy: the case concerns a Brazilian national who was removed from the French Guyana with no possibility for him to challenge the lawfulness of such measure before it was enforced;
13.12.2012,Grand Chamber Judgment, El-Masri vs.the Former Yugoslav Republic of Macedonia,(n. 39630/09), on the inhuman and degrading treatments and thesecret rendition of the applicant who was suspected of terrorist ties;
11.12.2012, Sampani and others vs. Greece, (n. 59608/09), on the prohibition of discriminationand the right to education: according to the Court the failure of the authoritiesto integrate Roma children in the ordinary education system amounts to a discrimination against them;
6.12.2012,Michaud vs. France, (n. 12323/11), on the obligation on lawyers of the so called “declaration of suspicion” on their clients’ possible unlawful activities, as part of the European drive to combat money laundering, which is deemed to be not in contrast with the right to private life and not in breach of the right to professional secrecy;
22.11.2012,Telegraaf Media Nederland Landelijke Media B.V. and others vs. the Netherlands,(n. 39315/06), according to which theauthorities did not protect the journalistic sources in a case involving documents which were taken from the secret services;
20.11.2012,Harabin vs. Slovakia,(n. 58688/11), according to which the Slovak Constitutional Court failed to address in detail doubts as to impartiality of its judges in a disciplinary proceeding against the President of the Supreme Court;
13.11.2012,Anca Mocanu and others vs. Romania, (n. 10865/09, 32431/08 and 45886/07), on the excessive length of the investigations in a case of death and inhuman and degrading treatments during a crackdown on demonstrations in Bucharest in June 1990;
13.11.2012,C.N. vs. the United Kingdom, (n. 4239/08), in which the Court deemed that the lack of a specific legislation criminalizing domestic servitude had made the investigations into the victim’s allegations ineffective;
13.11.2012,Joanna Szulc vs. Poland, (n. 43932/08), on the right to private and family life in a case in which the Polish authorities failed to give the applicant swift access to her security service file which had been kept on her during the communist era;
6.11.2012,Redfearn vs. the United Kingdom, (n. 47335/06), on freedom of association: the Court deemed that the Employment Rights Act 1996, which allows thedismissal from employment solely on account of the employee’s political views and membership of a political party, carried with it the potential for abuse;
6.11.2012,Ekoglasnost vs. Bulgaria, (n. 30386/05), according to which the late adoption of substantial amendments to the electoral law breached the right to free elections;
6.11.2012, Hode & Abdi vs.the United Kingdom,(n. 22341/09), according to which the previous version of the Immigration Rules discriminated against certain refugees and their spouses;
6.11.2012,Ališić and others vs. Bosnia-Herzegovina, Croatia, Serbia, Slovenia and the Former Yugoslav Republic of Macedonia, (n. 60642/08), on the impossibility for the applicants to withdraw their foreign-currency savings deposited in Serbia and Slovenia before the dissolution of the Socialist Federal Republic of Yugoslavia: the Court considered it appropriate to apply the pilot-judgment procedure in this case, as there were more than 1,650 similar applications pending before it and concluded that the two Countries should undertake all the necessary measures within six months from the date on which the Court's judgment became final in order to allow the applicants and all the persons in their position to be paid back their "old" foreign-currency savings under the same conditions as those who had such savings in domestic branches of Slovenian and Serbian banks;
30.10.2012,P. and S. vs. Poland, (n. 57375/08), according to which a teenage girl, who was raped, should have been given unhindered access to abortion and to more accurate medical information;
30.10.2012,Glykantzi vs.Greece, (n. 40150/09), on the excessive length of civil proceedings in the Greek legal system: the Court decided to apply the pilot procedure, deeming that the length of civil procedures and the lack of a remedy by which to complain about this issue had arisen from failings in the Greek legal system and requested Greece to put in place, within one year, an effective remedy in order to provide appropriate and sufficient “redressement” in such cases;
25.10.2012,Grand Chamber Judgment, Vistiņš and Perepjolkins vs. Latvia, (n. 71243/01), on the extremely disproportionate compensation for the lands expropriated by the Latvian Government, which, according to the Court, failed to strike a fair balance between the protection of the property and the public interest and caused the violation of the right to property.

We would also like to highlight the following judgments:

20.12.2012,Habitants des îles Chagos vs. the United Kingdom,(n. 35622/04), declaration of inadmissibility since the applicants accepted to receive a compensation and renounced to all claims before the British courts;
29.11.2012,Ramaer and van Willigen vs. the Netherlands, (n. 34880/12), on the new health insurance system applied to Dutch retired persons who reside in other Countries of the European Union, which was deemed non discriminatory.

For the extra-European area we have included:

The judgment of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia of 04.12.2012, case Prosecutor vs. Milan Lukić, Sredoje Lukić, which affirmed the sentence of life imprisonment for Milan Lukić, and reduced the sentence for Sredoje Lukić from 30 to 27 years’ imprisonment; and the judgment of 16.11.2012, case Prosecutor vs. Ante Gotovina, Mladen Markač, which acquitted the accused persons, who had been previously sentenced to 24 and 18 years’ imprisonment for crimes against humanity and war crimes;
The judgment of the Trial Chamber II of theInternational Criminal Tribunal for the formerYugoslaviaof 29.11.2012, caseProsecutor vs. Ramush Haradinaj, Indriz Balaj, Lahi Brahimaj, whichacquitted the accused persons, former members of the Kosovo Liberation Army (KLA), of all charges brought against them during a partial re-trial which began in August 2011, after the judgment of the Appeals Chamber of 2010 had ordered a retrial on six counts of the original 37;
The judgment of the Appeals Chamber of theInternational Criminal Tribunalfor Rwandaof 09.10.2012, caseJean-Baptiste Gatete vs. the Prosecutor, which affirmed the sentence of first instance, however reducingthe conviction as a remedy for the violation of the right to be tried without undue delay;
The judgement of the Inter-American Court of Human Rightsof 04.09.2012, caseMasacres de Río Negro vs. Guatemala, which sentenced the Statefor the massacres committed by the army and the civil patrollers against the Maya populationof the Rio Negro community during the years 1980-1982, and for the subsequent violations of human rights committed against the survivors; the judgment of 03.09.2012, caseUzcátegui y otros vs. Venezuela, whichsentenced the State for the violation of the right to life, personal freedom, personal integrity, freedom of thought and expression, respect for private life and private property, and to effective remedies in relation tothe extrajudicialexecutionof Néstor José Uzcátegui by the police of the Stateof Falcon, as well as for the arbitrary detention and threats suffered by Luis Enrique Uzcátegui and Carlos Eduardo Uzcátegui; another judgment of 03.09.2012, caseVélez Restrepo y familiares vs. Colombia, whichsentenced the Statefor the aggressionagainst thejournalist Luis Gonzalo Vélez Restrepo by members of the Colombian security forces, and for the following threats against him and his family; another judgment of 03.09.2012, case Palma Mendoza y otros vs. Ecuador, which excluded, in this specific case, the responsibility of the State for the violation of human rights; and the judgment of 31.08.2012, caseFurlan y familiares vs. Argentina, on the right to access to justice and to effective remedies in a civil proceeding for damages, in the light of the particular conditions of the victim (minor and disabled), which also recalls the jurisprudence of the Court of Strasbourg.

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

Belgium: the decision of the Cour Constitutionnelle n. 144/2012 of 22.11.2012, which, in the matter of environment, recalls the Convention of Aarhus and Directives n. 85/337/EC and 92/43/EC; the decision n. 142/2012 of 14.11.2012, which, in the matter of electoralright in working places, recalls articles 6, 22 and 36 of the European Social Charterand Convention n. 154 of theILO; the decision n. 139/2012 of 14.11.2012, which, in the matter of impossibility to appeal against measures concerning the damages following spatial planning, recalls articles 6 and 13 of the ECHR; the decision n. 123/2012 of 18.10.2012,on the extension of the allowance for unlawful dismissal to workers on a fixed-term contract, which recalls Directive 1999/70/EC and the jurisprudence of the Court of Justice; the decision n. 116/2012 of 10.10.2012, which, in the matter of treatment of personal data and right to the respect for private life, orders a reference for a preliminary ruling to the Court of Justice in relation to the interpretation of article 13, paragraph 1 d) and g), of Directive 95/46/EC; and the decision n. 114/2012 of 04.10.2012, which rejects a claim lodged against article 4 of the law of 27 February 1987, concerning benefits for disabled persons, for the alleged violation of the principle of non-discrimination, recalling the jurisprudence of the Court of Strasbourg;
Bosnia and Herzegovina: the decision of the Ustavni sud(Constitutional Court) of 28.09.2012, in the matter of fair trial, which recalls the jurisprudence of the Court of Strasbourg; and another decision of 28.09.2012, on the violation of the rights provided by article 6 of the ECHR with regard to a proceeding for damages subsequent to the destruction of the claimant’s property;
France: the decision of theCour de cassation n. 1461 of 28.11.2012, which, in the matter of international adoption, recalls article 8 of the ECHR and the International Convention of the rights of the child; the decision n. 2675/2012 of 15.11.2012, which, in the matter of freedom of trade union organization, recalls article 11 of the ECHR and Convention n. 98 of the ILO; the decisionn. 1210/2012 of 31.10.2012, which, in thematter of damages following a car accident and the subsequent judicial assessment, applies article 8 of the ECHR; the decision n. 1163/2012 of 24.10.2012, which, in the matter of rights of third-country nationals, applies article 15 of Directive 2008/115/EC;
Germany: the decision of the Bundesverfassungsgerichtof 19.7.2012, on the relation between the protection of fundamental rights of legal persons in Member Statesprovided by the German Constitution and Union law;
Great Britain: the decision of the United Kingdom Supreme Courtof 14.11.2012, on the right to property of persons who bought certain goods – then confiscated – partially with their own money and partially with the profit of committed crimes; the decision of the England and Wales High Court of 07.12.2012, on the freedom of expression and assembly of a group of animal-rights supporters who harassed the employees of an undertaking which carried out tests on animals while protesting against it; and the decision of 15.10.2012, on the obligations deriving from article 2 of the ECHRfor social services to protect the right to life of a fourteen year-old who died of overdose; the decision of the High Court of Justice in Northern Ireland of 30.11.2012, in which the Court orders the cancellation of a facebook page where the name and some photographs of a citizen sentenced for sexual crimes on minors had been published, in order to protect such minors from possible aggressions and the violation of the right to private and family life; the decision of the England and Wales Court of Appeal of 21.11.2012, on the compatibility of the sanction of life imprisonment with the prohibition of inhuman and degrading treatments; the decision of theSpecial Immigration Appeals Commission of 12.11.2012,