ESIL IHRL Interest Group Call for Papers

European Society of International Law’s Interest Group on International Human Rights Law has posted call for papers for “a roundtable on the relationship of international human rights law to other bodies of international and domestic law” at the ESIL Vienna Conference in September 2014.

Judgment in W. v Slovenia

The European Court of Human Rights has on 23 January 2014 delivered judgment in W. v Slovenia (no. 24124/06), which we have discussed before. The Court held that Slovenia violated its procedural obligations under Article 3 of the European Convention. More specifically, it held that :

69. … the Court agrees with the applicant that the prolonged state of uncertainty and other negative implications of the lengthy proceedings, in particular having to relive the painful events a number of times in three separate retrials, caused her unnecessary suffering and frustration which could have been avoided had the criminal-law mechanisms aimed at deterrence of and punishment for criminal acts of sexual abuse been applied in an effective and prompt manner. In this regard, the Court would add that the failure of the State to ensure effective prosecution of rape cannot be justified by the backlog of cases in the relevant courts (see, mutatis mutandisScordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006‑V, and the references cited therein). Neither can it be justified by the frequent changes of the sitting judges who were dealing with the applicant’s case. Namely, as the Court has already emphasised on many occasions, it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention (see, for example, Šilih, cited above, § 210).

The Court also held that redress obtained by an applicant was not sufficient. It reasoned as follows :

84.  In the Court’s opinion the effects of the prolonged uncertainty as to the outcome of the criminal proceedings and related mental distress endured by the applicant over the period of seventeen years, coupled with the short prison sentences imposed on the defendants, are comparable to the breaches found by the Court in the cases cited in the previous paragraph, which should be reflected in the amount of compensation awarded to the applicant. This finding cannot be changed by the fact that the outcome of the present case, in which eight out of ten defendants were eventually convicted and sentenced to imprisonment, was, as pointed out by the Government, favourable to the applicant.

85.  Therefore, the Court considers that the compensation awarded to the applicant by the domestic courts did not constitute sufficient redress and thus she may still claim to be a “victim” of a breach of Article 3 of the Convention.

FRA Report on data protection remedies

The European Union Fundamental Rights Agency has recently published report on “Access to data protection remedies in the EU Member States”. The report highlights the “victims’ lack of understanding and awareness about data protection and the authorities that serve to help them”.

Judgment in O’Keeffe v Ireland

The Grand Chamber of the European Court of Human Rights has on 28 January 2014 delivered a land-marking judgment in the case of O’Keeffe v Ireland (n. 35810/09) concerning sexual abuses of children in Irish catholic schools in 1970s. It found that Ireland has violated article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy).

168.  To conclude, this is not a case which directly concerns the responsibility of LH, of a clerical Manager or Patron, of a parent or, indeed, of any other individual for the sexual abuse of the applicant in 1973. Rather, the application concerns the responsibility of a State. More precisely, it examines whether the respondent State ought to have been aware of the risk of sexual abuse of minors such as the applicant in National Schools at the relevant time and whether it adequately protected children, through its legal system, from such treatment.

The Court has found that it was an inherent positive obligation of government in the 1970s to protect children from ill-treatment. It was, moreover, an obligation of acute importance in a primary education context. That obligation was not fulfilled when the Irish State, which must be considered to have been aware of the sexual abuse of children by adults through, inter alia, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to non-State actors (National Schools), without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants were directed away from the State authorities and towards the non-State denominational Managers (paragraph 163 above). The consequences in the present case were the failure by the non-State Manager to act on prior complaints of sexual abuse by LH, the applicant’s later abuse by LH and, more broadly, the prolonged and serious sexual misconduct by LH against numerous other students in that same National School.

169.  In such circumstances, the State must be considered to have failed to fulfil its positive obligation to protect the present applicant from the sexual abuse to which she was subjected in 1973 whilst a pupil in Dunderrow National School. There has therefore been a violation of her rights under Article 3 of the Convention. Consequently, the Court dismisses the Government’s preliminary objection to the effect that this complaint was manifestly ill-founded.

Advocate General Cruz Villalon on the Data Retention Directive

Advocate General Cruz Villalon has on 12 December 2013 delivered his opinion in a higly controversial case C‑293/12 and C‑594/12 on the Directive 2006/24/EC of the European Parliament and that of Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. He concluded that said Directive;  

is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use (para. 159)

and added :

Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years (para. 159).

The dilemma between protecting national security and the protection of fundamental rights of individuals to privacy does not fall between genuines dilemmas. It is actually not a dilemma. States can only protect national security in a manner that does not interfere unlawfully in the fundamental rights of individuals. Arbitrary interference of state and non-state bodies in the privacy of the individuals are illegal and in breach of the European Convention and the EU Charter.