Prohibition of expulsion to a risk of ill-treatment – Nizamov et al v. Russia

The European Court of Human Rights held on 7 May 2014 in the case of Nizamov and Others v. Russia (nos. 22636/13, 24034/13, 24334/13 and 24528/13) that Russia violated article 3 of the ECHR as a real risk exists that the applicants would be subjected to ill-treatment on the basis of their membership in the Islamic religious group if they were to be expelled to Uzbekistan. As in the previous cases, the concern was how one can prove that in fact applicants will be ill-treated if returned to Uzbekistan. However, the application of any standard of proof to the probability of future events will always be subject to a degree of speculation. What is more, the Court argued that mere formal commitment to international human rights treaties does not guarantee that they protection will be heeded in practice. More specifically, it noted that :

substantial grounds have been shown for believing that there is a real risk that the applicants would be subjected to treatment contrary to Article 3 of the Convention if they were to be expelled to Uzbekistan. The summary and unspecific reasoning adduced by the domestic authorities and the Government before the Court did not dispel the alleged risk of ill‑treatment. Nor can that risk be excluded on the basis of other material available to the Court. In this connection, the Court notes that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights, relied on by the Government in their arguments, are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention…

What is noticeable and commendable, that Russia, often described as a state with the poor record of compliance with the ECtHR’s judgments,  heeded interim order of the European court from April 2013 asking not to expel the applicants to Uzbekistan until the final decision.

Central and Eastern European Judges under the EU Influence

20140512_095631Conference on Central and Eastern European Judges under the EU Influence takes place today and tomorrow at the European University Institute. Has the state of mind of judiciaries in the Central and Eastern European states changed ten years after joining the EU ?

Call for Papers – 6th Annual Conference on Legal Theory, Philosophy and Argumentation

6th Annual Conference on Legal Theory, Philosophy and Argumentation on »Legal and Philosophical Challenges of Transnational Law«, Bled, Slovenia, 21. – 22. November 2014

The conference is organized by the Graduate School of Government and European Studies in co-operation with the European Faculty of Law and with the generous support of the Slovenian Research Agency.The overall theme of this year’s conference is “Legal and Philosophical Challenges of Transnational Law«, which is to be analyzed through a variety of substantive andmethodological lenses, including: legal theory, legal argumentation, legal philosophy and political philosophy, international law, human rights and ethics.

The conference will thus consist of four panels, dedicated to legal theory and legal philosophy; legal argumentation; international law and ethics. A special panel will be reserved for PhD researchers and researchers at an early stage of their career.The organizers would like to invite interested contributors to send short abstracts (up to 250 words) falling within the above theme, addressing in particular, but not exclusively, the following questions:

– What is transnational law?

– Who are its actors and how is their legal accountability ensured?

– How does transnational law relate to traditional state law?

– How does transnational law impact on the canonical standards of legal argumentation?

– What are the specific ethical challenges of transnational law and how should they beaddressed?

The abstracts should be sent to by August 31, 2014. The selected contributors will be notified by September 15, 2014. The organizers will cover up to two nights of accommodation in the Hotel Jelovica, Bled, where the conference is going to take place.

Organizing Committee:

Matej Avbelj, Graduate School of Government and European Studies

Jernej Letnar Černič, Graduate School of Government and European Studies

Vojko Strahovnik, European Faculty of Law

Marko Novak, School of Advanced Social Studies

Ruiz Vieytez on the effectiveness of the European system of national minorities protection

20140505_182509Prof. dr. Eduardo J. Ruiz Vieytez of University of Deusto delivered yesterday at the Jean Monnet Academic Forum at the Graduate School of Government and European Studies in Kranj a speech that focused on the effectiveness of the European system of national minorities protection. In doing so he also discussed recent claims for greater autonomy and independence in the Basque country and Catalonia.

Non-consensual collection of personal medical data about forceful sterilisation contrary to Article 8 ECHR

The applicant in the case of L.H. v Latvia (52019/07) gave birth by Caesarean section in 1997 in Cēsis District Court. The surgeon also performed tubal ligation during the delivery, thereby effectively unlawfully sterilising the applicant. The applicant thereafter claimed damages from the hospital and was successful. However, the Latvian Inspectorate of Quality Control for Medical Care and Fitness for Work (MADEKKI) initiated inquiry in the procedures at the Hospital and thereafter transmitted findings, including personal medical data, without her consent to the hospital director. The applicant claimed before Latvian violations of right to privacy, however her claims were rejected as unfounded before all judicial instances in Latvia. However, the European Court of Human Rights noted that :

…  that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of the right to respect for his or her private life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve confidence in the medical profession and in the health services in general (para. 56)

and concluded :

… the MADEKKI appears to have collected the applicant’s medical data indiscriminately, without any prior assessment of whether the data collected would be “potentially decisive”, “relevant” or “of importance” …. for achieving whatever aim might have been pursued by the MADEKKI’s inquiry. In this context it becomes less relevant whether the staff of the MADEKKI had a legal duty to maintain the confidentiality of personal data.. (para. 58).

Therefore, the Court found that Latvia violated Article 8 of ECHR as the intereference was not compliant with the law as it breached applicant’s right to respect for private life. The essence of the case was that applicant could have legally expected that the state authorites will not collect her personal medical data, however their failed to comply with their negative obligation to do act in accordance with the law.

Conference on Central and Eastern European Judges under the EU Influence

College of Europe and European University Institute will be on 12 and 13 May 2014 holding conference on “Central and Eastern European Judges under the EU Influence: The Transformative Power of Europe Revised on the 10th Anniversary of the Enlargement”. The conference aims to answer the following questions :

What has been the “transformative power” of EU law on the reasoning and ideologies of Central European countries’ judiciary? What has been the impact of EU membership on their institutions? How can we explain the radical change of approach of some initially “Euro-friendly” Constitutional Courts that in recent times have questioned the constitutionality of EU acts and even a judgement of the ECJ? What are the cultural and political reasons of the backsliding on rule of law and constitutional guarantees in some of the Central and Eastern European countries following the accession?

The programme of the conference is as follows :

Monday, 12th
May 2014
9.00 Arrival and Registration of participants
9.30 Welcome and Introduction
Loïc Azoulai, Director of the Centre for Judicial Cooperation, European University Institute
Michal Bobek, College d’Europe
10.00 Stream 1: Judicial Reasoning and Judicial Ideology – Chair: Loïc Azoulai
Short presentations by
Peter Cserne – Formalism and Policy Arguments in Judicial Reasoning: Is Central Europe a Special Case?
Jan Zobec and Jernej Letnar Černič – The Remains of the Authoritarian Mentality within the Slovene Judiciary
Marcin Matczak, Matyas Bencze and Zdeněk Kühn – EU law and CEE judges. Administrative judiciaries in the Czech Republic, Hungary and Poland ten years after the Accession
Rafał Mańko – The Impact of EU Membership upon Private Law Adjudication in Poland: A Case Study on Unfair Terms in Consumer Contracts
10.40 Comments by Boštjan Zalar and Erhard Blankenburg
11.15 Coffee break
11.30 General Discussion
12.00 Stream 2: Structural and Institutional Changes – Chair: Matej Avbejl
Short presentations by Sinisa Rodin – Dumb and no More Here
Marton Varju and Andras Kovacs – The impossibility of being a European and a national judge at the same time: a Central and Eastern European experience
Nina Poltorak – Changes in the level of the national judicial protection under the EU influence on the example of Polish legal system
Alexander Kornezov – When David Teaches EU Law to Goliath – A Generational Upheaval in the Making in the Bulgarian Judiciary
Aleš Galič – Aversion Against a Judicial Discretion in Civil Proceedings in Post-communist Countries: Can the Influence of the EU Law Change It?
13.00 Lunch
14.20 Stream 2: Structural and Institutional Changes (continued)
Comments by Mirosław Wyrzykowski and Tudorel Stefan
14.40 General Discussion
15.15 Coffee break
15.30 Stream 3: Constitutional Courts and Constitutional Justice – Chair: Wojciech Sadurski
Short presentations by
Tomasz Tadeusz Koncewicz – Polish Constitutional Court and the comity of circumspect
constitutional courts: The Court of old closures or new openings?
Jiří Přibán – Constitutional Sovereignty and Jurisprudence of the Czech Constitutional Court
Allan Tatham – “Keeping the Faith”: The Trials and Tribulations of the Hungarian Constitutional Court in following its European Vocation
Aleksandra Kustra – When the language you speak is not your mother-tongue: Confusions in CE Constitutional Courts’ application of legal concepts concerning EU Membership
Pola Cebulak – From a «teacher-student» relationship to a «student-student» dynamic? The Central and Eastern European «block » of Constitutional Courts in European Judicial Politics
16.30 Comments by Marek Safjan
16.50 General Discussion
17.30 End of Day 1
Tuesday, 13th
May 2014
9.30 Stream 4: Backsliding and the Rule of Law – Chair: Inge Govaere
Short presentations by
Kim Lane Sheppele – Constitutional coups and judicial review: how transnational institutions can strengthen peak courts at times of crisis (with special reference to Hungary)
Petra Gyöngyi – Constitutional constraints and possibilities and the role of the European Union in guiding judicial reforms in Hungary and Romania
Uladzislau Belavusau – Challenging Authoritarism: EU Transformative Power in Central & Eastern Europe?
Martin Mendelski – Pathologies of rule of law promotion: The uneven impact of the EU on de jure and de facto rule of law development in Central and Eastern Europe
10.15 Comments by Hannes Kraemer and Jenö Czuczai
10.50 Coffee break
11.10 General Discussion
11.40 Conclusions
Of Light, Darkness, and the White Man`s Burden
Michal Bobek

Mladina v Slovenia – ECtHR protects harsh journalistic criticisms of politicians

The European Court of Human Rights has on 17 April 2014 delivered its judgment in the case of Mladina d.d. v Slovenia (20981/10) concerning the scope and nature of freedom of political expression. Slovenian left-wing weekly magazine, Mladina, published in 2005 an article describing a former nationalistic right-wing politician, former MP of Slovenian parliament, as “a cerebral bankrupt” referring to his opposition to legal recognition of same-sex partnerships. Slovenian ordinary courts held that published article breached the accepted forms of journalistic criticisms and thereafter awarded damages to former MP. Their decisions were later upheld also by the Slovenian Constitutional Court. The European Court, however, disagreed and found Slovenia in violation with article 10 ECHR. More specifically, it agreed that : 

… describing S.P.’s conduct as that of a “cerebral bankrupt” who, in a country with less limited human resources, would not even be able to find work as a primary school janitor, was indeed extreme and could legitimately be considered offensive. However, it is noted that the impugned remark was a value judgment, as acknowledged by the Government. It is true that in the absence of any factual basis even value judgments can be considered excessive. Nevertheless, in the present case the facts on which the impugned statement was based were outlined in considerable detail; with the exception of his concluding remark, S.P.’s parliamentary speech was quoted almost in its entirety, along with a mention of his accompanying imitation of a homosexual man. This description was followed by the author’s commentary which, in the Court’s opinion, was not only a value judgment, but also had the character of a metaphor. In the context of what appears to be an intense debate in which opinions were expressed with little restraint (see paragraphs 7 and 8 above), the Court would interpret the impugned statement as an expression of strong disagreement, even contempt for S.P.’s position, rather than a factual assessment of his intellectual abilities. Viewed in this light, the description of the parliamentarian’s speech and conduct can be regarded as a sufficient foundation for the author’s statement. (para. 43.)

Therefore it held that :

the domestic courts did not convincingly establish any pressing social need for placing the protection of S.P.’s reputation above the applicant company’s right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. The Court thus concludes that the reasons given by the domestic courts cannot be regarded as a sufficient justification for the interference with the applicant company’s right to freedom of expression. The domestic courts therefore failed to strike a fair balance between the competing interests. (para. 47).

The Court’s decision in present case is in the line with its case law. Freedom of expression clearly protects the right to harsh criticism of persons occupying public positions and participation in public debate. Politicians and other public figures may be subject to harsher criticism than individuals who do not occupy public positions, or do not participate in the public sphere, as it is a critique of the holders of public positions in the public interest (Castells v Spain, no. 11798/85, 23. 4. 1992, para. 46; Otegi Mondragon v Spain, no. 2034/07, para. 50). Anyone can participate in discussion of matters of public interest and may exaggerate or provoke but subject to respect for the reputation and rights of others. However, the right to freedom of expression does not protect publications of false statements and records.