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.

New articles on ECHR and ECJ

Below are listed some of the articles,  which have been published in past months on the European system of human rights protection.

Scott L. Greer, Tomislav Sokol, Rules for Rights: European Law, Health Care and Social Citizenship, European Law Journal (2014) Volume 20, Issue 1, 66–87.

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.

Lourdes Peroni & Alexandra Timmer, Vulnerable Groups: the Promise of an Emergent Concept in European Human Rights Convention Law, 11 International Journal of Constitutional Law (2013), 1056-1085.

The concept of “vulnerable groups” is gaining momentum in the case law of the European Court of Human Rights. The Court has used it in cases concerning Roma, people with mental disabilities, people living with HIV and asylum seekers. Yet the appearance of the vulnerable group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability and equality as well as on the Court’s case law, this Article offers a descriptive and normative assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This Article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.

Anthony Cullen, Steven Wheatley, The Human Rights of Individuals in De FactoRegimes under the European Convention on Human Rights, Human Rights Law Review (2013)13 (4): 691-728.

The objective of this article is to evaluate the extent to which we can regard individuals in the territories of de facto regimes in the Council of Europe region (Abkhazia, South Ossetia, Nagorno-Karabakh, Transdniestria and Turkish Republic of Northern Cyprus) as enjoying the protection of the European Convention on Human Rights. The work considers the utility of recognising ‘de facto regimes’ as subjects of international law, before examining the relevant case law of the European Court of Human Rights and wider international law on the human rights obligations of such political entities. It then draws on the doctrine of acquired human rights to recognise, in certain circumstances, that the European Convention on Human Rights can be opposable to such regimes and concludes by reflecting on the implications of the analysis for understanding human rights in world society.

Jernej Letnar Černič, The prohibition on hate speech in the case-law of the European Court of Human Rights, Dignitas – Slovene Journal of Human Rights (2013), Issue 57-58, 128-145.

The right to freedom of expression is one of the foundations of a free, pluralistic, tolerant and democratic-minded society. However, the right to freedom of expression is not absolute because it must be protected in relation to other values. This article addresses and analyses 42 cases from the case-law of the European Court of Human Rights relating to hate speech. The analysis of these 42 cases illustrates the lowest common denominator, namely, that freedom of expression does not protect hate speech based on the glorification of genocide, crimes against humanity, the Holocaust or discriminatory and xenophobic statements against racial, religious or ethnic groups. The article concludes that individuals hold a key responsibility for creating a tolerant, open-minded and pluralistic public sphere in the respective European societies.