HumanRights - Canon Law

Adverse consequences of economic sanctions Sub-Commission on Human Rights resolution 2000/25

International Commission on Intervention and State Sovereignty, Responsibility to Protect Description of the narrow circumstances when genocide or extreme humanitarian crisis might permit and international body, with the narrow intention of addressing the humanitarian need, to violate another state's sovereignty.
Vienna Declaration and Programme of Action "All human rights are universal, individible andinterdependent and interrelated." All to promote all rights, regardless of political, economic and cultural systems.
Report of the Regional Meetin for Asia of the World Conference on Human Rights "Bankok Declaration"
"Stressing the importance of education and training in human rights at the national, regional and international levels and the need for international cooperation aimed at overcoming the lack of public awareness of human rights....

Stress the urgent need to democratize the United Nations system, eliminate selectivity and improve procedures and mechanisms in order to strengthen international cooperation, based on principles of equality and mutual respect, and ensure a positive, balanced and non-confrontational approach in addressing and realizing all aspects of human rights;
Discourage any attempt to use human rights as a conditionality for extending development assistance;
Emphasize the principles of respect for national sovereignty and territorial integrity as well as non-interference in the internal affairs of States, and the non-use of human rights as an instrument of political pressure;
Reiterate that all countries, large and small, have the right to determine their political systems, control and freely utilize their resources, and freely pursue their economic, social and cultural development;
Stress the universality, objectivity and non-selectivity of all human rights and the need to avoid the application of double standards in the implementation of human rights and its politicization, and that no violation of human rights can be justified;
Recognize that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds;

International Court of Justice, advisory opinion 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory sections 102-118

In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.
The International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of application. This may be explicable by the fact that this Covenant guarantees rights which are essentially territorial. However, it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction. Thus Article 14 makes provision for transitional measures in the case of any State which "at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge."
It is not without relevance to recall in this regard the position taken by Israel in its reports to the Committee on Economic, Social and Cultural Rights. In its initial report to the Committee of 4 December 1998, Israel provided "statistics indicating the enjoyment of the rights enshrined in the Covenant by Israeli settlers in the occupied Territories." The Committee noted that, according to Israel, "the Palestinian population within the same jurisdictional areas were excluded from both the report and the protection of the Covenant" (E/C.12/1/Add. 27, para. 8). The Committee expressed its concern in this regard, to which Israel replied in a further report of 19 October 2001 that it has "consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction" (a formula inspired by the language of the International Covenant on Civil and Political Rights). This position, continued Israel, is "based on the well-established distinction between human rights and humanitarian law under international law." It added: "the Committee's mandate cannot relate to events in the West Bank and the Gaza Strip, inasmuch as they are part and parcel of the context of armed conflict as distinct from a relationship of human rights" (E/1990/6/Add. 32, para. 5). In view of these observations, the Committee reiterated its concern about Israel's position and reaffirmed "its view that the State party's obligations under the Covenant apply to all territories and populations under its effective control" (E/C.12/1/Add.90, paras. 15 and 31).
For the reasons explained in paragraph 106 above, the Court cannot accept Israel's view. It would also observe that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights. Furthermore, it is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities.
As regards the Convention on the Rights of the Child of 20 November 1989, that instrument contains an Article 2 according to which "States Parties shall respect and ensure the rights set forth in the . . . Convention to each child within their jurisdiction . . .." That Convention is therefore applicable within the Occupied Palestinian Territory.

United Nations Human Rights System

2005 World Summit Outcome

"10. We reaffirm that development is a central goal in itself and that sustainable development in its economic, social and environmental aspects constitutes a key element of the overarching framework of United Nations activities.

"11. We acknowledge that good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger.

"16. We therefore resolve to create a more peaceful, prosperous and democratic world and to undertake concrete measures to continue finding ways to implement the outcome of the Millennium Summit and the other major United Nations conferences and summits so as to provide multilateral solutions to problems in the four following areas:

Development
Peace and collective security - interdependence, range of threats with no national boundaries, work to security consensus, states can't protect themselves by acting alone. All should refrain from use of force and threats of force. Strongly condemn terrorism. States shouldnt' suport terrorism, UN should develop multinational strategy, all should assist victims, development is the way to combat terrorism. Sanctions remain an important tool, should be used and monitored carefully
Human rights and the rule of law -

"121. We reaffirm that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis. While the

significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms."

122 Responsibilities of states - 124 Increases budget of HR office and capacity building - streamline reporting processes - 126 mainstreaming of human rights and implementation in states - 127 rights of indigenous peoples noted - 128 women and children ... and other specific groups, disability, ethnic minority - 132 internally displaced persons - 133 refugees - 134 support rule of law - 135 promotion of democracy

Resolves to the Human Rights Council - reform and strengthening of UN HR system.

General Assembly resolution 60/251 2006 Founds the Human Rights Council.
Human Rights Council 5/1 Institution Building

Universal periodic review - principles, objectives, periodicity, process of review, outcime, follow-up.

Human rights council advisory committee of 18 experts - election, functions, process

Complaint procedure detailed

Regional Systems of Human Rights Protection

EUCtHR Civet v France French Court of Cassation was in a position to assess, on the basis of its examination of the proceedings, whether the judicial authorities had complied with the “reasonable time” requirement of Article 5, Section 3 of the Convention. Failure to appeal to the Court of Cassation did not provide the French courts with the opportunity of preventing or putting right the violations alleged against them. Therefore domestic remedies had not been exhausted.
Mifsud v France - inadmissible:

"In 2002 this principle was extended to proceedings still pending at the domestic level at the time of lodging an application with the Court, in the Grand Chamber case of Mifsud20, in which the Court found that any complaint about the length of court proceedings lodged after 20 September 1999 without first having been submitted to the domestic courts under Article L.781-1 was inadmissible, regardless of the stage reached in the proceedings at the domestic level.

"In Mifsud, the Court further observed that the purely compensatory nature of the remedy in question did not deprive it of its effectiveness. The Court reiterated its finding in Kudla that a remedy in respect of the length of court proceedings is effective if it either prevents a violation or its continuation or provides adequate redress for any violation that has already occurred. Consequently, the fact that the remedy under French law cannot be used to expedite proceedings was not decisive. "

Group of Wise Persons Report 15 November 2006 - to consider initial effects of Protocol 14

"125. The survival of the machinery for the judicial protection of human rights and the Court’s ability to cope with its workload are seriously under threat from an exponential increase in the number of individual applications which jeopardises the proper functioning of the Convention’s control system. It is essential to recommend effective measures to remedy this situation on a permanent basis, thus making it possible to ensure the long-term effectiveness of the Convention’s control mechanism, without the right of individual application being affected, and allowing the Court to concentrate on its function as the custodian of human rights by relieving it of a whole body of litigation which places an unnecessary burden on it.

Suggestions: Greater flexibility, filtering body, enhancing authority of court's case-law in states parties, advisory opinions, improve domestic remedies, states to give just compensation, pilot judgment, friendly settlements and mediation, extend duties of commissioner, institutional issues.

'''Compliance with Member States Commitments'''

Introduction

Part I : Monitoring in application of the 1994 Declaration on compliance with commitments

Seizure of the Committee of Ministers (paragraph 1 of the Declaration and paragraphs 5 and 6 of the 1995 Procedure for implementing the Declaration)
Specific action (paragraph 4 of the Declaration)

Part II: Thematic monitoring
Part III: Specific post-accession monitoring

Ad hoc monitoring with respect to Armenia and Azerbaijan
Regular monitoring of Bosnia and Herzegovina, Georgia and Serbia and Montenegro on the basis of, inter alia, Secretariat Reports

'''ON COMPLIANCE WITH COMMITMENTS''' 10/11/1994) Procedures for addressing Human Rights violations though political followup and mutual collaboration.
Promotion of Human Rights and Democratisation in the European Union's External Relations good summary
1. Milestones in the Integration of Human Rights and Democratic Principles into the Legal Order of the EU
2. Promotion of Human Rights and Democratisation in External Relations
3. Human Rights and Democracy as an Objective of Common Foreign and Security Policy
4. Human Rights at the Forefront of EU Development Cooperation
5. Human Rights Dialogues and Consultations
6. Human Rights Clause in Agreements with Third Countries
7. Mainstreaming Human Rights and Democratisation
8. Future Challenges
9. Funding Activities to Promote Human Rights and Democratisation

Obligations Imposed on States by International Human Rights Treaties

Human Rights Committee Comment # 31 (80)
European Court of Human Rights (ECHR): '''Bankovic v. Belgium''', Application No. 52207/99 (December 12, 2001)
The ECHR Grand Chamber dismissed as inadmissible an application by the relatives of individuals that were killed in the 1999 bombing of a Belgrade building of the Radio Television of Serbia ("RTS") during the North Atlantic Treaty Organisation ("NATO") air strikes against the Federal Republic of Yugoslavia ("FRY"). The application was brought against all the European NATO member states, which are also parties to the Convention for the Protection of Human Rights and Fundamental Freedoms ("Convention"). The FRY was not, and is still not, a party to the Convention.
The ECHR rejected the Applicants' arguments that the respondent States' control over the FRY's airspace was "nearly as complete as Turkey's control over the territory of northern Cyprus," and that the RTS strike thus brought them within the jurisdiction of the respondent States. The ECHR noted that the jurisdictional competence of a State was primarily territorial, and that a state might not exercise jurisdiction on the territory of another state without the latter’s consent, invitation and acquiescence. The ECHR also noted that Convention Article 1, which provides that States Parties shall secure to everyone "within their jurisdiction" the rights and freedoms under the Convention, must be considered to reflect "this ordinary and essentially territorial notion of jurisdiction."
The ECHR concluded that state practice in the application of the Convention had been "indicative" of a lack of any apprehension on the part of the Contracting States of their extra-territorial responsibility in contexts similar to the present case. The ECHR found that its case-law demonstrated that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State was "exceptional." The ECHR noted that it had done so when "a respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government."
'''Dudgeon v. United Kingdom'''
Summary: In Northern Ireland, the commission of an act of buggery and an attempt to commit buggery are offences under sections 61 and 62 of the Offences against the Person Act 1861. An act of gross indecency committed by a man with another man is an offence under section 11 of the Criminal Law Amendment Act 1885 and an attempt to commit an act of gross indecency is an offence at common law. Unlike the position in the other constituent parts of the United Kingdom, no legislation has been enacted in relation to Northern Ireland to provide (subject to exceptions in relation to persons who are especially vulnerable, e.g. persons under 21 and mental patients) that private acts of buggery and gross indecency between consenting males over 21 should not be criminal offences.
Between 1972 and 1980 no private prosecutions were brought for homosexual offences in Northern Ireland and, so far as was known, no other prosecutions were instituted in respect of the commission of acts which would not have been offences had they been committed in England or Wales. There had, however, in Northern Ireland (unlike in Scotland before the law there was amended) been no stated policy not to prosecute in respect of such acts. On the question whether the existence of criminal offences relating to homosexual conduct in private between consenting males over the age of 21, or some lesser age, constituted an interference with a person's right to respect for his private life in contravention of Article 8 of the European Convention on Human Rights.
Held, by 15 votes to four, that there had been a breach of Article 8 in regard to the existing law in relation to men aged over 21; but that it was for countries to fix for themselves, in the first instance, any appropriate extension of the age of consent in relation to such conduct.

European Court of Human Rights (chamber), 2 October 2001. Hatton v. United Kingdom
European Court of Human Rights (grand chamber)4 8 July 2003. [hei.unige.ch/~clapham/hrdoc/docs/echrhattoncase.doc Hatton v. United Kingdom] European Court of Human Rights (2003) 37 E.H.R.R. 28 - Level of noise caused by night flights - implementation of new scheme in 1993 - Art.8 - application in enivironmental cases - noise disturbances emanated from activities of private operators - State responsibility may arise from failure to regulate private industry - whether implementation of Scheme struck a fair balance between the competing interests - no failure to comply with domestic law - legitimate for Government to have invoked economic considerations - scope of margin of appreciation - general policy decisions call for a wide margin of appreciation - difficulties in establishing whether Scheme caused deterioration of night noise climate - no indication that decision to introduce regime based on quota count system violated Art.8 - authorities entitled to rely on statistical data based on average perception of noise disturbance - reasonable to assume that night flights contributed to the general economy - ability of individuals to move elsewhere without financial loss - procedural aspect of the case - 1993 Scheme had been preceded by a series of investigations and studies - applicants had access to consultation paper and could haw made representations - authorities had not overstepped margin of appreciation - no fundamental flaws in preparation of 1993 Regulations on limitations for night flights - no violation of Art.8 - Art. 13 - right to an effective remedy - claim under Art.8 was arguable - no action lay in trespass or nuisance in respect of lawful night flights - scope of judicial review was limited to classic English, public law concepts - scope of judicial review not sufficient to comply with Art.13 - violation of Art. 13 - application of Art.41.

International Human Rights in the Domestic Legal Order

European Court of Human Rights S April 2004, Assanidze v, Georgia The ECHR Grand Chamber held unanimously that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights (“the Convention”) on account of the applicant’s detention since January 29, 2001. A majority of the court held that there had been a violation of Article 6 § 1 (right to a fair hearing) of the Convention on account of the failure to comply with a judgment acquitting the applicant.

The applicant, Mr. Tengiz Assanidze, is currently in custody in Batumi, the capital of the Ajarian Autonomous Republic in Georgia (“the Ajarian Republic”). On November 28, 1994, the applicant was sentenced to eight years imprisonment for illegal financial dealings and for unlawfully possessing and handling firearms. The Supreme Court of Georgia upheld the applicant’s conviction for illegal financial dealings. On October 1, 1999, the President of the Ajarian Republic granted the applicant a pardon for the illegal financial dealings; the applicant was not, however, subsequently released by the local Ajarian authorities. While in custody, further charges were brought against the applicant on December 11, 1999 in connection with a separate case of kidnapping. The applicant was then sentenced to 12 years imprisonment by the Ajarian High Court; this judgment was later reversed by the Supreme Court of Georgia on January 29, 2001. Nonetheless, the applicant still remains in the custody of the Ajarian authorities.

With regard to jurisdiction, the ECHR observed that Georgia had ratified the Convention for the whole of its territory without making any specific reservations with regard to the Ajarian Republic or to difficulties in exercising its jurisdiction over that territory. Therefore, the Ajarian Republic is indisputably an integral part pf the territory of Georgia and subject to the competence and control of Georgia. The ECHR further noted that the Ajarian Republic has no separatist aspirations and no other State exercises effective control over this territory. The Court noted that, although States encounter difficulties in securing compliance with rights in the Convention, activities directly imputable to local authorities of the Ajarian Republic are still within the jurisdiction of the Georgian state. Consequently, the ECHR found that, for the purposes of Article 1 of the Convention, the actual facts out of which the allegation of violations arose were within the jurisdiction of the Georgian state.

The applicant further complained that he had been the victim of a violation of Article 5 § 1 of the Convention following his pardon by the President on October 1, 1999 and thus submitted that his detention since his acquittal on January 29, 2001 was arbitrary. As regards the period from October 1, 1999 (presidential pardon) to December 11, 1999 (when the applicant was charged), the ECHR noted that the complaint was out of time. As to the period from December 11, 1999 (when the applicant was charged) to January 29, 2001, the ECHR found that the complaint was outside the scope of the case referred to the Grand Chamber for examination.

The ECHR noted that on January 29, 2001 the Supreme Court of Georgia ordered the applicant’s release. However, the applicant has remained in custody since then despite the fact that his case had not been reopened and no further order had been made authorizing his detention. The ECHR held that there was no statutory basis for the applicant’s deprivation of liberty and, therefore, the applicant was arbitrarily detained since January 29, 2001 in breach of Article 5 § 1 of the Convention.

European Court of Human Rights, 22 June 2004. Broniowski v. Poland The ECHR Grand Chamber held unanimously that Poland violated Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights (“the Convention”). The Court also found that many similar so-called Bug River Claims were likely to arise and, therefore, called upon the Polish authorities to take the necessary measures to secure the property rights at issue.

The applicant, Jerzy Broniowski, alleged that Poland failed to satisfy his entitlement to compensation for property which belonged to his grandmother when the area was still part of Poland before the Second World War. At the Yalta and Potsdam conferences the Soviet Union and Poland agreed on a new border along the Bug River. Many people living in the Eastern Provinces of Poland, including the applicant’s grandmother, had to be repatriated. Since 1946, Polish law had entitled them to compensation in kind, i.e. they could buy land from the State for a “perpetual use” fee offset against the compensation for the abandoned property. In 1981, the applicant’s grandmother received approximately 2% of the value of her abandoned land in the form of the right of perpetual use of a small building plot. In 1989, her entitlement to compensation for the abandoned property and the right of perpetual use were bequeathed to the applicant. On December 19, 2002, the Polish Constitutional Court declared the provisions of the 1990 Local Government Act excluding the enforcement of the Bug River Claims unconstitutional. However, on December 12, 2003, Poland passed a law discharging the claim of those who had obtained any compensation property and awarding 15% of their original entitlement, subject to a ceiling of 50, 000 Polish Zlotys, to those who had never received such compensation.

The Court recognized that Poland had to deal with an exceptionally difficult situation, given the historical and political background of the case and the social, legal and economic considerations at stake. In deciding that a fair balance had not been struck by the Polish authorities, the Court took into account the number of people involved and the substantial value of their claims. The Court also emphasized that Poland chose to reaffirm its commitment to compensate the claimants in the 1985 and 1997 Land Administration Acts. Furthermore, the Court stressed that, even in a very difficult context, a State cannot exercise its discretion against the Convention.

The Court found that Poland did not fulfill its obligation under Article 1 Protocol 1 to secure the peaceful enjoyment of possessions in an appropriate and consistent manner. The Court further found that Poland was entitled to expropriate property but was required to grant compensation “reasonably related” to its value under Article 1 Protocol 1. The Court concluded that the applicant had had to bear a disproportionate and excessive burden not justified by a legitimate community interest.

The Court found that the decision was not limited to this particular applicant’s case but that a whole class of individuals was affected by it. Therefore, the Court observed that under Article 46 of the Convention, Poland was required to adopt measures to put an end to the violation and redress its effects under the supervision of the Committee of Ministers of the Council of Europe. The Court could no assess whether the December 2003 Act was an adequate measure because no practice of its implementation had been established. However, the Court concluded that for the group of Bug River claimants, like the applicant, who had already received partial compensation in kind, the Act was not a measure putting an end to the situation. The Court considered that Poland had to secure the effective and expeditious realization of the remaining Bug River claimants’ entitlement or to provide equivalent redress.

Committee of Ministers. Recommendation No. R (2000) 2 of 19 January 2000 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights - Respondent state can decide restitution.
Committee of Ministers, Resolution DH (2007)1 of 14 February 2007 on the execution of the judgment of the European Court of Human Rights Ocalan against Turkey Human rights lawyers are welcoming today's decision of the highest panel of the European Court of Human Rights (ECtHR), confirming that the imposition of the death penalty on Abdullah Ocalan violated the prohibition on human and degrading treatment. Mr Ocalan will receive a retrial to compensate deficiencies in his original trial which led to the imposition of the death penalty, later commuted to a life sentence. Mr Ocalan has remained in solitary confinement as the sole prisoner on Imrali Island since 1999.

In light of the case's significance, the Grand Chamber took the exceptional step of proposing specific measures available to the Turkish Government to enable it to implement fully the terms of the judgment. In the specific context of such cases in Turkey's state security courts, the Court declared, the most appropriate form of redress in principle would be for the applicant to be given a retrial without delay if he so requested.

Loizidou Court ordered Turkey to allow Mrs. Loizidou to return to her home. In 2003 Turkey paid Ms Loizidou the compensation amounts ruled by the European Court of Human Rights.[3] Turkey has also evacuated her house to return it to her. Ms Loizidou has chosen not to return as long as there are Turkish occupation troops making her return unsafe. The Court accepted her reason. As a result Turkey will continue to pay compensation to her for denying her the right to enjoy her property. Turkey said it wasn't responsible.

Committee of Ministers, Interim Resolution DH (2000) 105 of 24 July 2000 Concerning the judgment of the European Court of Human Rights of 28 July 1998 in the case of Loizidou against Turkey

Committee of Ministers, Interim Resolution DH(2001) 80 of 26 June 2001 Concerning the judgment of the European Court of Human Rights of 28 July 1998 in the case of Loizidou against Turkey

Committee of Ministers, Resolution DH(Z003)190 of 2 December 2003 Concerning the judgment of the European Court of Human Rights of 28 July 1998 in the case of Loizidou against Turkey

Committee of Ministers, Resolution DH(2003)191 of 2 December 2003 Concerning the judgment of the European Court of Human Rights of 18 December 1996 in the case of Loizidou against Turkey

Parliamentary Assembly. Resolution 1516 (2006) of 2 October 2006. Implementation of judgments of the European Court of Human Rights is a crucial part of EU Human Rights system. Committee of Ministers will supervise by reports, resolutions and recommendations.

Right to Life

European Court of Human Rights 8 July 2004, Vo v. France Facts: the applicant attended a medical examination scheduled during her pregnancy. Due to a mix-up caused with another woman who had the same surname, the doctor who examined the applicant pierced her amniotic sac, making a therapeutic abortion necessary. The doctor was charged with unintentional injury but the French Court of Cassation did not find an offence of involuntary homicide.

Complaint: the applicant claimed that the French authorities' refusal to classify the unintentional killing of her unborn child as involuntary homicide was a violation of the right to life guaranteed by article 2 of the European Convention.

Holding: member states had to decide when the right to life began and it was not up to the ECHR to answer the question whether the unborn child was a person for the purposes of Article 2 of the Convention. It also stated that even if Article 2 was applicable in the case, there had been no violation of article 2. Wide margin of appreciation in decision about beginning of life in convention - but margin of appreciation is for local law, but not for interpretation of treaty. Positive duty of state to protect right to life. But don't have to criminalize.

European Court of Human Rights. 27 September 1995, McCann v, United Kingdom Facts: The applicants are parents of the victims who were shot dead by members of the Special Air Service, a regiment of the British Army which was expecting a terrorist attack by the IRA. An investigation began but certain information was not disclosed.
Holding: the ECHR found a violation of article 2 of the European Convention (right to life).

Reasoning: when individuals have been killed by agents of the State, article 2 imposed that an investigation be made. Even if shortcomings in the investigation had been found in the present case, the Court held that they did not hamper the making of a thorough and impartial examination of the circumstances surrounding the killings. Accordingly, there had been no breach of Article 2-1. However, the Court found a violation of article 2 because the killing of the three terrorists did not constitute a use of force which was" absolutely necessary" as proscribed by Article 2-2.

European Court of Human Rights. 30 November 2004, Oneryildiz v. Turkey Facts: The applicant lived in a slum quarter of Istanbul surrounding a rubbish tip which exploded because of the decomposition of the refuge and killed 9 of his relatives. A report showed that the authorities failed to take any measures at the tip in question to prevent an explosion of methane.

Complaint: The applicant claimed that there had been a violation of Articles 2 (right to life), 13 (right to an effective remedy), 6 § 1 (right to a fair hearing within a reasonable time) and 8 (right to respect for private and family life) of the Convention, and of Article 1 of Protocol No. 1 (protection of property).

Holding: the ECHR held that there had been a violation of articles 2, 1 and 13 of the Convention.

Reasoning: the Turkish authorities had known or ought to have known that there was a real risk to persons living near the rubbish tip so they had had an obligation under Article 2 of the Convention to take operational measures to protect individuals living near the rubbish tip. As they failed to do so, they breached article 2. Furthermore, there was a positive obligation on the State under Article 1 of Protocol No. 1 to take the practical steps to avoid the destruction of the dwelling, which was not fulfilled either. Finally, the compensations to the applicant were not appropriate and timely so there had been a violation of article 13 too.

European Court of Human Rights. 28 October 1998 Osman v. United Kingdom Facts: the applicant's husband was killed by her son's former teacher and her son was seriously wounded. before the accident happened, the teacher had already threatened the applicant and his family.

Complaint: the applicant complained of the failure of authorities to protect the right to life of her husband from the threat posed by the teacher

Holding: the ECHR did not find a violation of article 2 of the European Convention.

Reasoning: Article 2 implied a positive obligation on the authorities to take preventive measures to protect an individual whose life is at risk from the criminal acts of another individual. However, the Court concluded that the facts in the case did not show that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from the teacher. Accordingly, the authorities did not breach Article 2.

European Court of Human Rights. 29 April 2002. Pretty v. United Kingdom Facts: the applicant was dying of a neuron disease. She was paralyzed but could make decisions. She wanted to die to be spared of suffering and indignity but could not do it by herself. She thus wanted her husband to help her commit suicide. However, it was a crime to assist another to commit suicide under the British laws and her request to guarantee her husband freedom from prosecution if he helped her was refused.

Complaint: The applicant claimed that the U.K. violated Article 3 (prohibition of inhuman or degrading treatment or punishment), Article 2 (right to life), Article 8 (right to respect for private life), Article 9 (freedom of conscience) and Article 14 (prohibition of discrimination)

Holding: the ECHR found no violation of article 2, 3, 8, 9 and 14

Reasoning: Article 2 § 1 enjoined States to refrain from the unlawful taking of life and to take appropriate steps to safeguard lives. Article 2 could not be interpreted as conferring a right to die so there was no violation of article 2. Moreover, as article 3 was construed in conjunction with Article 2 there was no violation of article 3 either.

Prohibition of Torture

European Court of Human Rights. 18 January 1978. Ireland v. United Kingdom 167. ... Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood. ...

The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of [the European Convention on Human Rights] Article 3 (art. 3).

European Court of Human Rights. 28.1uIy 1999. __Selmouni v. France__ Injured during interrogation then 15 year sentence. Awareded damages.
European Court of Human Rights. 7 July 1989. Soering v United Kingdom The applicant, a West German national, alleged that the decision by the Secretary of State for the Home Department to extradite him to the United States of America to face trial in Virginia on a charge of capital murder would, if implemented, give rise to a breach by the United Kingdom of Article 3. If he were sentenced to death he would be exposed to the socalled 'death row phenomenon'. He also complained of a breach of Article 13, in that he had no effective remedy in the United Kingdom in respect of his complaint under Article 3, and of Article 6. The Commission found a breach of Article 13 but no breach of either Article 3 or Article 6. The case was referred to the Court by the Commission and the Governments of the United Kingdom and of the Federal Republic of Germany.
Held, by the Court, unanimously

(a) that, in the event of the Secretary of State's decision to extradite the applicant to the United States of America being implemented, there would be a violation of Article 3.

(b) that in the same event, there would be no violation of Article 6(3)(c);

(d) that there had been no violation of Article 13;

(e) that the applicant should be awarded compensation in respect of his legal costs and expenses.

(f) that the remainder of the claim for just satisfaction was rejected.

Committee against Torture, 20 May 2005. Agiza v. Sweden. no, 233/2003 The U.N. Committee against Torture concluded that Sweden breached Articles 3 and 22 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. ("Convention against Torture").

The complainant, Ahmed Hussein Mustafa Kamil Agiza, an Egyptian national who was detained at the time of the submission of his complaint, alleged, inter alia, that his removal by Sweden to Egypt on December 18, 2001 violated Article 3 of the Convention against Torture.

In 1998, the complainant was tried in Egypt in abstentia for terrorist activity before a "Superior Court Martial, along with over one hundred other accused of being members of "Al Gihad", and was sentenced, without possibility of appeal, to 25 years' imprisonment. In 2000, the complainant left Iran for Canada and claimed asylum during a transit stop in Stockholm, Sweden. The complainant sought asylum on the grounds that he had been sentenced to "penal servitude for life" in absentia on account of terrorism linked to Islamic fundamentalism, and would be executed upon his return. The Swedish Migration Board sought the opinion of the Swedish Security Police to advise it on the case. Whereas the Migration Board thought that the complainant was entitled to refugee status, the Security Police disagreed. In the end, the Swedish Government rejected the complainant's asylum application for reasons that are omitted from the text of the Committee's decision at Sweden's request and with the agreement of the Committee.

Sweden argued, inter alia, that it acted in accordance with international law, specifically, in accordance with UN Security Council Resolution 1373 of September 28, 2001, in which the Security Council decided that UN Member States shall deny safe haven to those who finance, plan, support or commit terrorist acts and shall ensure that the institution of refugee status is not abused by perpetrators, organizers of facilitators of terrorist acts, in accordance with international law. Sweden maintained that it sought and obtained guarantees from Egyptian authorities with respect to the treatment of the complainant upon return there. It also submitted that representatives from the Swedish embassy made several visits to the complainant in Egypt and did not find any signs of torture.

The complainant's counsel argued that Sweden was aware of the risk that the complainant would be subjected to torture in Egypt, and for this reason it sought to obtain a guarantee that his human rights would be respected. However, according to the complainant's counsel, Sweden made no arrangements prior to the complainant's expulsion as to how the guarantees in question were to be implemented upon his return to Egypt. In this regard the complainant's counsel cited the ECHR case of Chahal v. United Kingdom, in which the Court found that the Indian government's guarantee was, on its own, an insufficient protection against human rights violations.

The Committee concluded that Sweden failed to provide for a review by an effective, independent and partial judicial body of the Migration Board's decision to expel the complainant. The Committee recalled that the protections of the Convention against Torture are absolute. It observed that "the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk."

The Committee further concluded that Sweden violated Article 22 of the Convention against Torture by expelling the complainant immediately upon the Government's decision, thereby depriving him of a meaningful opportunity to exercise his eight to seek interim measures before the Committee.

Right to Liberty and Security

European Court of Human Rights. 28 March 2000. Baranowski v, Poland In a judgment delivered at Strasbourg on 28 March 2000 in the case of Baranowski v. Poland, the European Court of Human Rights held unanimously that there had been a violation of Article 5 § 1 (right to liberty and security) and Article 5 § 4 (right to have the lawfulness of detention decided speedily) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 30,000 Polish zlotys (PLN) for non-pecuniary damage and PLN 10,000 for legal costs and expenses.

Facts: The applicant, Janusz Baranowski, a Polish national born in 1943 and living in Lódz (Poland), was a founder and president of the first Polish privately-owned insurance company "Westa" (declared insolvent in 1993). He was also a well-known politician and, at the beginning of the 1990s, was a senator (member of the Upper House of the Polish Parliament).

In 1993 the Lódz Regional Prosecutor charged the applicant with fraud and detained him on remand. Six months later, applicant applied for release, his detention having expired. Inditement was filed. He later applied for release on health grounds. On 22 October 1996 the applicant was released under police supervision. The criminal proceedings against him are still pending in the court of first instance.

European Court of Human Rights, 29 April 1999 Aquilina v. Malta
European Court of Human Rights, 3 October 2006. McKay v. United Kingdom

European Court of Human Rights, 29 November 1988. Brogan v. United Kingdom The applicants were questioned within a few hours of their arrest about their suspected involvement in specific offences and their suspected involvement in specific offences within the meaning of Article 5(1)(c). The fact that the applicants were neither charged nor brought before a court did not necessarily mean that the purpose of their detention was not in accordance with the article. There was no reason to believe that the police investigation was not in good faith and that the detention was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which formed the basis for their arrest. No violation can arise if the arrested person is released promptly if there is no intention to place the detention under judicial control. The assessment of ‘promptness’ has to be made in the light of the object and purpose of Art 5 which enshrines a fundamental right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty. Judicial control of such interferences is an essential feature of this guarantee, which is intended to minimise the risk of arbitrariness. Under article 5(3) to justify detention of 4 days and 6 hours without appearance before the judge would be an unacceptably wide interpretation of the plain meaning of the word ‘promptly’. Such an interpretation would import into the provision a serious weakening of a procedural guarantee.

Right to Respect for Private Life, Family Life, Home and Correspondence

European Court of Human Rights, 10 April 2007, Evans v. United Kingdom
A couple, having frozen the woman’s embryos subsequently breaks up. UK legislation requires the consent of both donors for the retention of stored frozen embryos was within the UK’s margin of appreciation and therefore not a violation of the applicant’s Article 8 rights.

A woman stored embryos fertilized by her boyfriend (with his consent) because she had to have her ovaries removed. After the couple broke up, the boyfriend revoked his consent U.K. law required the embryos to be destroyed but the woman challenged the relevant law. The trial court said the boyfriend had a right to withdraw his consent.

On appeal to the European Court of Human Rights, that court ruled 13-4 in favor of the U.K. law. The court noted that the case involved a conflict between the woman’s right to be a genetic parent and the man’s right to consent to parenthood. The court ruled that the U.K. deserved wide margin or appreciation in balancing these conflicting issue because of the sensitive nature of the issues involved and the swift changes in technology. So, the court concluded that the “applicant’s right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than [the boyfriend’s] right to respect for his decision not to have a genetically-related child with her.”

The four dissenters argued that the applicant’s “right to decide to become a genetically related parent weighs heavier than that of J’s decision not to become a parent in the present case” because U .K. law doesn’t allow for flexibility in instances of special medical conditions and the applicant’s right is totally foreclosed by this decision. Thus, the dissenters believe the specific facts of this case should compel a holding that the woman’s interests weighed more heavily than the man’s.

European Court of Human Rights, 24 June 2004, von Hannover v. Germany Facts: Princess Ranier of Monaco wants to prevent publication of photos of her private life. Procedural History: German courts allowed publication in Germany, but not France because she was a public figure and photos were in public places. Appeal discussed competing values of privacy versus press freedom (in the context of infotainment) and copyright law and requirement of permission of subject in photo unless it is a public figure.

As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life.
Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.
Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court's view, yield to the applicant's right to the effective protection of her private life.
Lastly, in the Court's opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant's private life and she should, in the circumstances of the case, have had a “legitimate expectation” of protection of her private life.
Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests.
There has therefore been a breach of Article 8 of the Convention.
Having regard to that finding, the Court does not consider it necessary to rule on the applicant's complaint relating to her right to respect for her family life.

European Court of Human Rights, 26 March 1985. X and Y v. Netherlands - Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity. European Court held that the failure of the Netherlands to allow criminal prosecution of a person who had assaulted a young woman who was mentally disabled was a violation of article 8 of the Convention, since the State had an obligation to provide protection against serious invasions of a person's bodily integrity by other private individuals.
European Court of Human Rights, 11 July 2002. Christine Goodwin v. United Kingdom Facts: The applicant, Christine Goodwin, a United Kingdom national born in 1937, is a post-operative male to female transsexual. She claimed that she had problems and faced sexual harassment at work during and following her gender re-assignment. She also alleged that the fact that she keeps the same national identity number has meant that her employer has been able to discover that she previously worked for them under another name and gender, with resulting embarrassment and humiliation.

Complaints: Relying on Articles 8, 12, 13 and 14 of the Convention, the applicant complained about her treatment in relation to employment, social security and pensions and her inability to marry

Holding: The ECHR found a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights; a violation of Article 12 (right to marry and to found a family); and did not find a violation of Article 13 (right to an effective remedy). It found that no separate issue had arisen under Article 14 (prohibition of discrimination)

Reasoning: No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals. Society might reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost. It concluded that the fair balance that was inherent in the Convention now tilted decisively in favor of the applicant. There had, accordingly, been a failure to respect her right to private life in breach of Article 8. The Court also found no justification for barring the transsexual from enjoying the right to marry under any circumstances. It concluded that there had been a breach of Article 12. The case-law of the Convention institutions indicated that Article 13 could not be interpreted as requiring a remedy against the state of domestic law. In the circumstances no breach of Article 13 arose. The lack of legal recognition of the change of gender of a post-operative transsexual laid at the heart of the applicant's complaints under Article 14 of the Convention and had been examined under Article 8 so there was no separate issue arose under Article 14.

The ECHR held that the United Kingdom's decision not to legally recognize a gender re-assignment of a British transsexual was in violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").

Ms. Goodwin underwent gender re-assignment surgery, and is a "post-operative male to female transsexual." Ms. Goodwin's request for a new "National Insurance (NI)" number was rejected by the U.K. Department of Social Security ("DSS"), whose records continue to state her sex as male. Furthermore, the DSS ruled that Ms. Goodwin was ineligible for a State pension at the age of 60, which is the age of entitlement for women in the United Kingdom, and that she would have to continue to contribute towards her retirement until she reached the age of 65, being the age of entitlement for men. Ms. Goodwin complained to the ECHR arguing, inter alia, violations of the Convention Articles 8 and 12, which guarantee the right to respect for private and family life and right to marry.

The ECHR held that it was not "formally bound" by its previous decisions involving the position of transsexuals in the United Kingdom, in which it found that there was no positive obligation on behalf of the Government to alter their existing system for the registration of births by establishing a new system that would reflect the current civil status. The ECHR noted that it is of "crucial importance" that the Convention is interpreted and applied in a manner which "renders its rights practical and effective, not theoretical and illusory."

The ECHR was "struck" by the fact that the U.K. authorities did not provide for full legal recognition of Ms. Goodwin's new civil status, although the U.K.'s national health service covered the costs of Ms. Goodwin's re-assignment surgery, after recognizing her condition as "gender dysphoria." The ECHR concluded that it was "illogical" to refuse to recognize the legal implications of the result to which the treatment have led. The ECHR cited an "emerging consensus" among the Contracting States, as well as "uncontested evidence of a continuing international trend," on providing full legal recognition of the new sexual identity of post-operative transsexuals. The ECHR held that the situation in which post-operative transsexuals live in an "intermediary zone" as not quite one gender or the other is "unsatisfactory" and "no longer sustainable" in the twenty first century. Consequently, the ECHR ruled that the United Kingdom's failure to accord full legal recognition of Ms. Goodwin's gender re-assignment amounted to a failure to respect her right to private life guaranteed under Article 8.

The ECHR observed that Article 12 of the Convention does not condition the right to marry on a man and woman's ability to conceive and parent a child. The ECHR also noted that there have been "major social changes in the institution of marriage since the adoption of the Convention, as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality." The ECHR further noted that the recently adopted Charter of Fundamental Rights of the European Union (click here for the ILIB summary of the Charter or read the full text of the Charter in 40 ILM 266 (2001)) deliberately departed from Article 12 language, removing any reference to men and women in its acknowledgment of the right to marry and right to found the family. For all these reasons, the ECHR held that there was no justification for barring a transsexual from enjoying the right to marry under "any circumstances."

European Court of Human Rights, 18 October 2006, Uner v Netherlands - Grand Chamber Case - Uner came to Netherlands at 12 years old, married and had a child. Later he was convicted for murder and threatened with deportation to Turkey. Uner says he has no more ties with Turkey. Grand Chamber rejected idea of special protection for long term immigrants; it also found that there were sufficient reasons to break the family ties. Recently a new deportation case was referred to the Grand Chamber.
European Court of Human Rights, 23 September 1994, Hokkanen v. Finland Father claims access to child after relationship has broken up. The child may not want to see the other parent - even due to relationship of ex-spouses. Court doesn't take enough efforts to enforce visitation rights - but it is difficult to do without trauma to the child.

Freedom of Expression

European Court of Human Rights, 8 July 1986. Lingens v. Austria A journalist accused the Chancellor of, inter alia, the "basest opportunism" and "immoral" and "undignified" behaviour. The SR noted that at the time the case came before the courts, Austrian law required that the truth of the allegations be proved. The journalist was convicted partly for failure to do this. On appeal, the European Court held, inter alia, that: the law was unreasonable; it was impossible to prove the truth of opinions; the characterization of the politician had been reasonable; and the journalist's article had been part of a larger political debate and not merely a gratuitous attack on the individual concerned.

European Court of Human Rights, 9 July 1998. Incal v. Turkey The court ruled that Turkey had violated Article 10 when it prosecuted members of the Izmir branch of a pro-Kurdish party in a national security court on terror charges for a leaflet it had prepared and submitted to authorities for approval to distribute.23 The court stated,

Subject to paragraph 2, it [Article 10] is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.... In order to demonstrate the existence of a “pressing social need” which would justify the finding that the interference complained of was “proportionate to the legitimate aim pursued,” the representative of the Government asserted...that “it was apparent from the wording of the leaflet... that they were intended to foment an insurrection by one ethnic group against the State authorities.” The court is prepared to take into account the background of the case submitted to it, particularly problems linked to the prevention of terrorism... . Here the court does not discern anything which would warrant the conclusion that Mr. Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically Izmir.... In conclusion, Mr. Incal’s conviction was disproportionate to the aim pursued, and therefore unnecessaryin a democratic society. There according has been a breach of Article 10 of the Convention.24

European Court of Human Rights, decision on admissibility. 13 November 2003, Gunduz v. Turkey
European Court of Human Rights, 20 May 1999. Rekvenyi v Hungary
Summary of the judgment
Complaints - Relying on Articles 10, 11 and 14 of the European Convention of Human Rights, the applicant complained that the impugned constitutional provision had amounted to an unjustified interference with his rights to freedom of expression and association and was of a discriminatory nature.
Decision of the Court
Article 10 of the Convention

The Court took it for granted that the pursuit of activities of a political nature came within the ambit of Article 10 in so far as freedom of political debate constituted a particular aspect of freedom of expression, being at the very core of the concept of a democratic society. The guarantees contained in Article 10 extend to military personnel and civil servants and the Court saw no reason to come to a different conclusion in respect of police officers.

The Court found that there had been an interference with the applicant’s right to freedom of expression. Such an interference gives rise to a breach of Article 10 unless it can be shown that it was "prescribed by law", pursued one or more legitimate aim or aims as defined in paragraph 2 and was "necessary in a democratic society" to attain them.

According to the Court’s well-established case-law, one of the requirements flowing from the expression "prescribed by law" is foreseeability. Nevertheless, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain. However, the level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. Because of the general nature of constitutional provisions, the level of precision required of them may be lower than for other legislation.

Against the background of that statement of principles, the Court rejected the applicant’s argument that the general constitutional ban on political activities by police officers failed to meet the requirement of foreseeability and that this was not rectified by any subsequent legislation including the 1994 Police Act. The Court was satisfied that the legal framework as a whole, including the contested constitutional prohibition and other legal rules partly permitting - occasionally subject to authorisation - and partly restricting the participation of police officers in certain kinds of political activities, was comprehensive enough to enable the applicant to regulate his conduct accordingly, if necessary after having sought advice beforehand from a superior or clarification of the law by means of a court judgment. In the light of these considerations, the Court found that the interference was "prescribed by law" for the purposes of paragraph 2 of Article 10.

As regards the legitimate aim of the contested restriction, the Court accepted that it was intended to depoliticise the police force and thereby to contribute to the consolidation and maintenance of pluralistic democracy in Hungary. The Court was convinced that members of the public were entitled to expect that in their dealings with the police they would be confronted with politically-neutral officers who are detached from the political fray. In the Court’s view, the desire to ensure that the crucial role of the police in society is not compromised through the corrosion of the political neutrality of its officers is one that is compatible with democratic principles; this objective takes on a special historical significance in Hungary because of that country’s experience of a totalitarian regime which relied to a great extent on its police’s direct commitment to the ruling party. Accordingly, the Court concluded that the restriction in question pursued legitimate aims within the meaning of paragraph 2 of Article 10, namely the protection of national security and public safety and the prevention of disorder.

Further, having recapitulated its case-law on the basic principles concerning Article 10, the Court went on to conclude that, in view of the particular history of some Contracting States, the national authorities of these States might, so as to ensure the consolidation and maintenance of democracy, consider it necessary to have constitutional safeguards to achieve the aim of the police force’s political neutrality by restricting the freedom of police officers to engage in political activities. Regard being had to the margin of appreciation left to the national authorities in this area, the Court found that the relevant measures taken in Hungary - a country that, between 1949 and 1989, was ruled by one political party and where, within the police force, membership of that party was expected as a manifestation of the individual’s commitment to the regime - could be seen as answering a "pressing social need" in a democratic society. Moreover, an examination of the relevant laws showed that police officers had in fact remained entitled to undertake some activities enabling them to articulate their political opinions and preferences. Therefore, the Court concluded that the means employed in order to achieve the legitimate aims pursued had not been disproportionate. Accordingly, the impugned interference with the applicant’s freedom of expression was not in violation of Article 10.

Article 11 of the Convention

The Court took the view that notwithstanding its autonomous role and particular sphere of application, Article 11 had in the present case also to be considered in the light of Article 10.

The last sentence of paragraph 2 of Article 11 – which is undoubtedly applicable in the present case – entitles States to impose "lawful restrictions" on the exercise of the right to freedom of association by members of the police. The concept of lawfulness in the Convention, apart from positing conformity with domestic law, also implies qualitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness. In so far as the applicant criticised the basis in domestic law of the impugned restriction, the Court was satisfied that the constitutional prohibition on membership of a political party by police officers was in fact unambiguous and it would not appear to be arguable that subordinate legislation introduced earlier had been capable of affecting the scope thereof. In the circumstances the Court concluded that the legal position had been sufficiently clear to enable the applicant to regulate his conduct and that the requirement of foreseeability was accordingly satisfied. Further, the Court found no ground for holding the restriction imposed on the applicant’s exercise of his freedom of association to be arbitrary. The contested restriction was consequently "lawful" within the meaning of Article 11 § 2.

Moreover, it was not necessary in the present case to settle the disputed issue of the extent to which the interference in question was, by virtue of the second sentence of Article 11 § 2, excluded from being subject to the conditions other than lawfulness enumerated in the first sentence of that paragraph. For the reasons previously given in relation to Article 10, the Court considered that, in any event, the interference with the applicant’s freedom of association satisfied those conditions. In sum, the interference could be regarded as justified under paragraph 2 of Article 11. Accordingly, there had been no violation of Article 11 either.

Article 14 of the Convention taken in conjunction with Articles 10 or 11

Although the Court’s conclusions that the interferences with the applicant’s freedoms of expression and association were justified under Articles 10 § 2 and 11 § 2 did not, as such, preclude the finding of a violation of Article 14 of the Convention, the considerations underlying those conclusions had already taken into account the applicant’s special status as a police officer. These considerations were equally valid in the context of Article 14 and, even assuming that police officers could be taken to be in a comparable position to ordinary citizens, justified the difference of treatment complained of. There had accordingly been no violation of Article 14 taken in conjunction with Articles 10 or 11.

Human Rights Council. resolution 4/9 of 30 March 2007, Combating defamation of religions
1. Expresses concern at negative stereotyping of religions and manifestations of intolerance and discrimination in matters of religion or belief;

Expresses deep concern at attempts to identify Islam with terrorism, violence and human rights violations;
Notes with deep concern the intensification of the campaign of defamation of religions, and the ethnic and religious profiling of Muslim minorities, in the aftermath of the tragic events of 11 September 2001;
Recognizes that, in the context of the fight against terrorism, defamation of religions becomes an aggravating factor that contributes to the denial of fundamental rights and freedoms of target groups, as well as their economic and social exclusion;
Also expresses concern at laws or administrative measures that have been specifically designed to “control” and “monitor” Muslim and Arab minorities, thereby stigmatizing them further and legitimating the discrimination that they experience;
Strongly deplores physical attacks and assaults on businesses, cultural centres and places of worship of all religions as well as targeting of religious symbols;
Urges States to take resolute action to prohibit the dissemination, including through political institutions and organizations, of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence;
Also urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions, to take all possible measures to promote tolerance and respect for all religions and their value systems and to complement legal systems with intellectual and moral strategies to combat religious hatred and intolerance;
Further urges all States to ensure that all public officials, including members of law enforcement bodies, the military, civil servants and educators, in the course of their official duties, respect different religions and beliefs and do not discriminate against persons on the grounds of their religion or belief, and that any necessary and appropriate education or training is provided;
Emphasizes that everyone has the right to freedom of expression, which should be exercised with responsibility and may therefore be subject to limitations as provided by law and necessary for respect of the rights or reputations of others, protection of national security or of public order, public health or morals and respect for religions and beliefs;
Deplores the use of the print, audio-visual and electronic media, including the Internet, and any other means to incite acts of violence, xenophobia or related intolerance and discrimination towards Islam or any other religion;
Invites the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to report on all manifestations of defamation of religions and in particular on the serious implications of Islamophobia on the enjoyment of all rights at its sixth session;
Requests the High Commissioner for Human Rights to report to the Human Rights Council on the implementation of this resolution at its sixth session.

Human Rights Council. resolution 4/10 of 30 March 2007. Elimination of all forms of intolerance and of discrimination based on religion or belief

The council also adopted a resolution on defamation of religions that could itself endanger human rights, Human Rights Watch said. The resolution, put forward by Pakistan on behalf of the Organization of the Islamic Conference, focuses on protection of religions themselves, particularly Islam, rather than the rights of individuals, including members of religious minorities. This approach, and a provision which notes that free expression can be limited based on “respect for religions and beliefs,” could be used to justify encroachments upon freedom of thought, conscience and religion. More positively, the council adopted by consensus a European Union resolution which addresses elimination of all forms of intolerance and of discrimination based on religion or belief, and calls for the council to address this issue at its sixth session this June.

Human Rights Committee. 8 November 1996. Faurisson v. France French academic claims the holocaust wasn't real, and that others have responsibility and deaths were exaggerated. He was prosecuted under the Gayssot Act. The author contends that the "Gayssot Act" curtails his right to freedom of expression and academic freedom in general, and considers that the law targets him personally ("lex Faurissonia"). He complains that the incriminated provision constitutes unacceptable censorship, obstructing and penalizing historical research. Faurisson didn't exhaust domestic remedies; though he claimed that 1. he didn't have money for attorneys or fees for this and 2. it would have been pointless in any case.
Examination of the merits

9.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as it is required to do under article 5, paragraph 1, of the Optional Protocol.

9.2 The Committee takes note of public debates in France, including negative comments made by French parliamentarians on the Gayssot Act, as well as of arguments put forward in other, mainly European, countries which support and oppose the introduction of similar legislations.

9.3 Although it does not contest that the application of the terms of the Gayssot Act, which, in their effect, make it a criminal offence to challenge the conclusions and the verdict of the International Military Tribunal at Nuremberg, may lead, under different conditions than the facts of the instant case, to decisions or measures incompatible with the Covenant, the Committee is not called upon to criticize in the abstract laws enacted by States parties. The task of the Committee under the Optional Protocol is to ascertain whether the conditions of the restrictions imposed on the right to freedom of expression are met in the communications which are brought before it.

9.4 Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19, and must be necessary to achieve a legitimate purpose.

9.5 The restriction on the author's freedom of expression was indeed provided by law i.e. the Act of 13 July 1990. It is the constant jurisprudence of the Committee that the restrictive law itself must be in compliance with the provisions of the Covenant. In this regard the Committee concludes, on the basis of the reading of the judgment of the 17th Chambre correctionnelle du Tribunal de grande instance de Paris that the finding of the author's guilt was based on his following two statements: "... I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers ... I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication". His conviction therefore did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author's case by the French courts, is in compliance with the provisions of the Covenant.

9.6 To assess whether the restrictions placed on the author's freedom of expression by his criminal conviction were applied for the purposes provided for by the Covenant, the Committee begins by noting, as it did in its General Comment 10 that the rights for the protection of which restrictions on the freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. The Committee therefore concludes that the restriction of the author's freedom of expression was permissible under article 19, paragraph 3 (a), of the Covenant.

9.7 Lastly the Committee needs to consider whether the restriction of the author's freedom of expression was necessary. The Committee noted the State party's argument contending that the introduction of the Gayssot Act was intended to serve the struggle against racism and anti-semitism. It also noted the statement of a member of the French Government, the then Minister of Justice, which characterized the denial of the existence of the Holocaust as the principal vehicle for anti-semitism. In the absence in the material before it of any argument undermining the validity of the State party's position as to the necessity of the restriction, the Committee is satisfied that the restriction of Mr. Faurisson's freedom of expression was necessary within the meaning of article 19, paragraph 3, of the Covenant.

The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee do not reveal a violation by France of article 19, paragraph 3, of the Covenant.

Right of Property

European Court of Human Rights, 28 September 2004, Kopecky v. Slovakia
European Court of Human Rights, decision on admissibility. 6 July 2005. Stec v. United Kingdom
European Court of Human Rights, 30 November 2004, Oneryildiz v, Turkey

Right to a Fair Trial

European Court of Human Rights, 12 July 2001, Ferrazzini v. Italy
European Court of Human Rights, 5 October 2000. Maaouia v. France
European Court of Human Rights, 19 April 2007. Vilho Eskelinen v. Finland
European Court of Human Rights, 21 February 1975. Colder v. United Kingdom
European Court of Human Rights, 15 December 2005. Kyprianou v. Cyprus
European Court of Human Rights, 26 March 1996. Doorson v. Netherlands

Equality and Non-Discrimination

Human Rights Committee. 9 April 1987. Broeks v. Netherlands 2.1. Mrs. Broeks, who was married at the time when the dispute in question arose (she has since divorced and not remarried), was employed as a nurse from 7 August 1972 to 1 February 1979, when she was dismissed for reasons of disability. She had become ill in 1975, and from that time she benefited from the Netherlands social security system until 1 June 1980 (as regards disability and as regards unemployment), when unemployment payments were terminated in accordance with Netherlands law. Exhaused domestic remedies. As a man she could have had unemployment benefits.

The Committee notes that the State party had not intended to discriminate against women and further notes with appreciation that the discriminatory provisions in the law applied to Mrs. Broeks have, subsequently, been eliminated. Although the State party has thus taken the necessary measures to put an end to the kind of discrimination suffered by Mrs. Broeks at the time complained of, the Committee is of the view that the State party should offer Mrs. Broeks an appropriate remedy.

European Court of Human Rights. 6 July 2005. Nachova v Bulgaria Case History: This case concerns the 1996 fatal shooting by military police soldiers of two Roma conscripts who, recently absconded from a military construction crew, were known to be unarmed and not dangerous. The killing, by automatic weapon fire, took place in broad daylight in a largely Roma neighborhood. Immediately after the killing, a military police officer allegedly yelled at one of the town residents, "You damn Gypsies!" while pointing a gun at him. In February 2004 the First Section of the European Court of Human Rights unanimously found that both the shootings and a subsequent investigation which upheld their lawfulness were tainted by racial animus, and that this constituted a breach of Article 2 (the right to life) and Article 14 (the right to non-discrimination) of the European Convention on Human Rights. This judgment was the first in the Court's history to find a violation of Article 14 on grounds of racial discrimination, and made clear that the right to non-discrimination requires States not to discriminate and to investigate allegations that discrimination has taken place. At the request of the Bulgarian government, the Court's Grand Chamber agreed to review the initial panel decision. In November 2004, the Justice Initiative filed an amicus brief addressing the obligation of states to investigate thoroughly racial motives underlying acts of violence.

Case Status: On July 6, 2005, the Grand Chamber of the Court issued a final judgment on Nachova, in which it affirmed in substantial part its landmark finding of racial discrimination in breach of Article 14 of the European Convention. The Court's ruling made clear that European states have an obligation to investigate possible racist motives behind acts of violence. The Grand Chamber upheld the February 2004 panel ruling that Bulgaria had breached the victims' right to life (Article 2) by failing to regulate the use of firearms by military police, and by failing to properly investigate the young men's deaths; it also unanimously agreed that the prohibition of discrimination under Article 14 of the Convention has a procedural component which required the State to investigate whether discrimination may play a role in the killings. The failure to do so, despite indicators of racial motivation, amounted to discrimination. With respect to the killings themselves, the Grand Chamber, by an 11-6 vote, overturned the prior ruling that they had been motivated by racial hatred. In doing so, the Grand Chamber reasoned that although in certain circumstances (where the events lie wholly or in large part within the exclusive knowledge of the authorities) the burden of proof may be regarded as resting on the authorities to provide a satisfactory explanation, the authorities' failure to carry out an effective investigation did not justify shifting to the government the burden of proof as to the motive of the killing.

European Court of Human Rights, 7 February 2006. D.H. v, Czech Republic The European Court of Human Rights (the “Court”) held that there has been no violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights (the “Convention”), taken in conjunction with Article 2 of Protocol No. 1 (right to education).

The applicants, Czech nationals of Roma origin, were placed in special schools for children with learning difficulties. They alleged to have been placed in such schools due to their Roma origin, and asserted a violation of Article 2 of Protocol No. 1 taken together with Article 14 of the Convention. The Court noted the criticism that had been exercised by several organizations regarding the situation of Roma children in the Czech Republic. At the same time, it noted however, that it was not its task to assess the overall social context, but to asses the case at hand. The Court observed that, “if a policy or general measure has disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory cannot be ruled out even if it is not specifically aimed or directed at that group. However, statistics are not by themselves sufficient to disclose a practice which could be classified as discriminatory.” The Court further found that “the rules governing children’s placement in special schools do not refer to the pupils’ ethnic origin, but pursue the legitimate aim of adapting the education system to the needs and aptitudes or disabilities of the children.” The Court made note of the fact that the decision on the school placement was taken by qualified professionals and that the applicants’ representatives had failed to show that the applicants were in fact able to follow an ordinary curriculum and to go to an ordinary school. Also, in some instances, the Court noted, it was the parents who requested that their children be kept in the special schools.

Finally, the Court noted: “[W]hile acknowledging that these statistics disclose figures that are worrying and that the general situation in the Czech Republic concerning the education of Roma children is by no means perfect, the Court cannot in the circumstances find that the measures taken against the applicants were discriminatory. “ The dissenting opinion of Judge Cabral Barreto is attached to the decision.

European Court of Human Rights, 12 April 2006. Stec v. United Kingdom In the case of Stec and others v. United Kingdom, the applicants alleged that the establishment of the retirement age as the limit for the payment of a work-related accident compensation allowance was discriminatory, as in the United Kingdom there is a different retirement age for men and women (65 for men and 60 for women).[46] The Court considered two questions separately. First, it concluded that linking the payment of the work accident compensation allowance with the normal employment period, and establishing its limit as the retirement age, had a legitimate purpose and was therefore reasonable. It then considered the gender-related difference in retirement age. On this point the Court found that a different retirement age for men and women was originally justified as a measure aimed at correcting existing inequalities between men and women and therefore could be considered reasonable, but that the difference in treatment should cease when social and economic changes remove the need for special treatment for women.

However, the Court indicated that as this social change has been gradual it is not possible to determine an exact moment in time when the differential measure becomes disproportionate. The Court also pointed out that, after a national consultation process, the state has adopted measures to correct this differentiated treatment by establishing a gradual gap reduction scheme in stages. The Court concluded that, given the original justification of the differentiated treatment and the gradual change in the social and economic position of women, the measures and timescale chosen by the state to equalize retirement ages were not so manifestly unreasonable as to exceed the wide margin of appreciation that it has in these matters. In consequence it considered that there was no violation of Article 14 of the Convention, in relation to Article 1 of Protocol 1.

Committee on the Elimination of Discrimination against Women, views of 26 January 2005, A.T. v. Hungary, no. 2/2003

Protection of Minorities

European Court of Human Rights, 18 January 2001. Chapman v. United Kingdom
Human Rights Committee. 30 October 1006. Jouni E, Lansman et al. v. Finland
Advtsory Committee on the Framework Convention For the Protection of National Minorities. 1 March 2006, Second opinion on Germany
Committee of Ministers, Resolution CM/ResCMN(2007) 4 of 7 February 2007 on the implementation of the
Framework Convention For the Protection of National Minorities by Germany
Parliamentary Assembly of the Council of Europe. Resolution 1301 (2002). Protection of minorities in Belgium
Parliamentary Assembly. Recommendation 1766 (2006), Ratification of the Framework Convention for the Protection of National Minorities by the member states of the Council of Europe

Economic Social and Cultural Rights

Maasricht Guidelines on Violations of Economic. Social and Cultural Rights
Committee on Economic. Social and Cultural Rights. General Comment No. 14 (2000). The right to the highest attainable standard of health (article 12 of the: International Covenant on Economic. Social and Cultural Rights)
European Committee of Social Rights, Conclusions XVII-I in respect of control cycle XVII-I. 2004 (partim: Belgium).
Governmental Committee of the European Social Charter. report concerning conclusions XVII-l (partim: Belgium)
European Committee of Social Rights, 7 December 2005. European Roma Rights Centre v, ltaly. no. 27/2004
Committee of Ministers. Resolution ResChS(2006) 4 of 3 May 2006. European Roma Rights Centre v. Italy. No. 27/2004

Cases

EUROPEAN COURT OF HUMAN RIGHTS

6.4.2005
XENIDES-ARESTIS v. TURKEY

The applicant

The applicant, Myra Xenides-Arestis, was born in 1945 and is a Cypriot national of Greek-Cypriot origin. She lives in Nicosia.

Summary of the facts

The applicant claims to own half a share in a plot of land in the area of Ayios Memnon, in Famagusta (Northern Cyprus), which was given to her by her mother. There are a shop, a flat and three houses on the land. She maintains that one of the houses was her home, where she lived with her husband and children, and that the rest of the property was either used by members of the family or rented out. She also states that she owns part of a plot of land with an orchard.

The applicant maintains that in August 1974 she was forced with her family by the Turkish military forces to leave Famagusta and abandon their home, property and possessions. She states that since then she has been prevented from having access to, from using and enjoying her home and property.

On 30 June 2003 the “Parliament of the Turkish Republic of Northern Cyprus” enacted the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus”. A “commission” was set up under this “law” with a mandate to deal with compensation claims.

The United Nation’s plan for the reunification of Cyprus (the Foundation Agreement – Settlement Plan) was put to the vote in Cyprus on 24 April 2004, with two separate referendums being held for the Greek-Cypriot and Turkish-Cypriot communities. However, the plan was rejected in the Greek-Cypriot referendum and did not, therefore, enter into force.

Complaints

The applicant complains of a continuing violation of her rights under Article 8 (right to respect for home) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention in that, since August 1974, she has been deprived of her right to property and her home. She also maintains that Turkish military forces prevent her from having access to, from using and enjoying her home and property because she is Greek Orthodox and of Greek-Cypriot origin, in violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with the other two Articles invoked.

Decision of the Court1

The Court declared the application admissible, without prejudging the merits of the case. It rejected the respondent Government’s objections on jurisdiction concerning the victim status of the applicant and the exhaustion of domestic remedies. In particular, as regards the latter, the Court considered that the remedy established in the “Turkish Republic of Northern Cyprus” could not be regarded as an “effective” or “adequate” means for redressing the applicant’s complaints.

Accordingly, the Court considered, in the light of the parties’ submissions, that the complaints raised serious issues of fact and law under the Convention, the determination of which required an examination of the merits.

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EUROPEAN COURT OF HUMAN RIGHTS
20.12.2006

MURILLO SALDIAS AND OTHERS v. SPAIN

The applicants

The case concerns three Spanish nationals and two British nationals: Sergio Murillo Saldías, who is 26 years old and lives in Orcoyen (Spain), Salvador Sanchis Pérez and María Isabel Verdú Peydro, who both live in Ibi (Spain), and Barry and Andrée Copestake, who live in Keelby (United Kingdom).

Summary of the facts

The applicants are survivors of the disaster which struck the Biescas campsite (Spanish Pyrenees) on 7 August 1996 when 87 people were killed in severe flooding following torrential rain. The first applicant’s parents and brother and sister died in the catastrophe. The other applicants were injured during the flooding and their mental health was also affected by their tragic experience on the campsite.

The Virgen de las Nieves campsite was situated at the confluence of the Arás, Betés and Asó Rivers on land belonging to the municipality of Biescas (Huesca Province). Considering the project of benefit to the village, the municipal authority had approved the plans for the campsite in 1985, and sent the file to the Provincial Development Department. The Head of the Botany Department of the Aragon Regional Government issued a report in January 1986 in which he expressed reservations about corrective works that had been carried out to prevent flooding on the River Arás, and about the location of the site (near the road to France via Le Portalet) and the nature of the terrain. He recommended that an alternative location be sought for the campsite.

The provincial department decided not to change the location of the campsite. The Head of the Botany Department issued a second report on 4 August 1986 in which he advised against granting planning permission for the campsite, as the area concerned was an alluvial cone of a watercourse with a powerful torrential regime and, despite the fact that corrective works had been carried out, it constituted a danger for users on account of its location.

Referring only to the recommendation of the Head of the Botany Department’s report of January 1986, the Head of the Regional Development Department sent a draft decision granting permission for use of the land as a campsite to the Department of Agriculture of the Aragon Regional Government. In a decision of April 1987, the Head of the Department of Agriculture granted permission for the use of the land. The decision contained references to various expert reports, but not to the report of 4 August 1986.

Following the catastrophe on 7 August 1996 a criminal investigation was started, which the applicants joined as civil parties. It ended with an order of 4 October 1999 by the Jaca investigating judge, who found that there was no case to answer, as the constitutive elements of the offences of criminal negligence and malfeasance had not been made out. An appeal by the applicants against that decision was dismissed and an application for amparo relief in the Constitutional Court was declared inadmissible as being unfounded. In addition, Mr Murillo Saldías brought administrative proceedings against the authorities to establish their strict liability. The Audiencia Nacional upheld his claim and, on 21 December 2005, awarded him 210,354.24 euros (EUR) in respect of each of his relatives who were killed in the flood, together with EUR 9,200 for their funeral expenses. Mr Murillo Saldías lodged an appeal on points of law which is still pending before the Supreme Court.

Complaints

The applicants complained under Article 2 (right to life) of the European Convention on Human Rights that Spain had not taken all the preventive measures that were necessary to protect users of the Biescas campsite. They alleged that the authorities had granted permission to use the land as a campsite despite being aware of the potential dangers. They also complained under Article 6 § 1 (right to a fair hearing) of procedural unfairness, in the form of bias on the part of the investigating judges and the Spanish courts. Lastly, they complained under Article 13 (right to an effective remedy) that the authorities had not conducted a proper, in-depth judicial investigation with a view to identifying those responsible for the catastrophe.

Procedure

The application was lodged on 13 November 2001. A public hearing took place on 8 November 2005 at the Human Rights Building in Strasbourg.

Decision of the Court1

The Court noted that, on 21 December 2005, the Audiencia Nacional had awarded Mr Murillo Saldías compensation in an amount that could not be regarded as unreasonable and would probably be confirmed or even increased by the Supreme Court when it examined the applicant’s appeal on points of law. The Court considered that, after the decision of the Audiencia Nacional, he could no longer claim to be a victim of a violation of rights set forth in the Convention within the meaning of Article 34. It accordingly declared the application inadmissible in respect of Mr Murillo Saldías.

The Court also declared the application inadmissible in respect of the other applicants on the grounds of a failure to exhaust domestic remedies, finding that they should have brought administrative proceedings against the authorities before lodging their application with the Court.

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EUROPEAN COURT OF HUMAN RIGHTS 29.6.2006
MATYJEK v. POLAND

Summary of the facts

The applicant, Tadeusz Matyjek, is a Polish national who was born in 1935 and lives in Warsaw, Poland.

Following the entry into force of the 1997 Lustration Act1, Mr Matyjek, who had been a member of the Sejm (Poland’s Parliament consists of two houses, the Sejm and the Senat), made a declaration that he had not collaborated with the communist-era secret services.

On 17 December 1999 Warsaw Court of Appeal found that the applicant had submitted an untrue lustration declaration because he had collaborated with the State’s secret services. The operative part of the judgment was served on the applicant on 3 January 2000. However, the reasoning was considered “secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of that court.

The applicant appealed unsuccessfully. The appeal court informed him that, due to the confidential nature of the case, the written reasoning for the judgment would not be served on him but could be consulted in the secret registry.

On 10 October 2000 the Supreme Court quashed the Court of Appeal’s judgment and remitted the case to it. The Supreme Court found that the applicant’s motion to hear two additional witnesses had been disregarded, which constituted a serious procedural shortcoming.

On 20 December 2000 the Head of the State Security Bureau lifted the confidentiality restrictions in respect of all the materials concerning the case.

On 25 January 2001 Warsaw Court of Appeal quashed the impugned judgment and remitted the case to the first-instance court. On 1 June 2001 the court held a public hearing. Subsequently, on 28 June and 4 December 2001, the hearings were held at least partly in camera. On 4 December 2001 Warsaw Court of Appeal gave judgment, again finding that the applicant had lied in his lustration declaration. The applicant appealed unsuccessfully to the Supreme Court.

Complaint

The applicant complains in particular that he was unable to defend himself adequately as he was prevented from taking notes during the court proceedings and that he did not have proper access to the case file. He relies on Article 6 (right to a fair hearing) of the European Convention on Human Rights.

Decision of the Court

The Court concluded that the complaint raised serious issues of fact and law under the Convention, the determination of which should depend on an examination of the case on its merits. The complaint was not manifestly ill-founded and no other ground for declaring it inadmissible had been established. The Court therefore, unanimously, declared the application admissible.

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