Review of ECHR decisions for 13/11/2024

CASE OF E.T. v. THE REPUBLIC OF MOLDOVA

Essence of the decision in 3-5 sentences:
The case concerns a Moldovan woman who was declared totally incapacitated due to mental illness and placed under guardianship. The Court found violations of Article 6 § 1 (right of access to court) and Article 14 in conjunction with Article 8 (discrimination) because the applicant was unable to directly seek restoration of her legal capacity and was subject to a rigid system of total incapacitation. The Court emphasized that the complete deprivation of legal capacity without possibility of intermediary solutions or periodic review was disproportionate.Structure and main provisions:
1. On Article 6 § 1 violation:- The Court found that preventing direct access to court for capacity restoration impaired the very essence of the right- The absence of periodic review and intermediary solutions for varying degrees of incapacity was problematic- The rigid rules resulted in total limitation of court access2. On Article 14 with Article 8 violation:- The Court found discriminatory treatment based on mental disability- The substitute decision-making regime deprived the applicant of all legal capacity indefinitely- No consideration was given to varying levels of disability or possibility of supported decision-makingKey provisions for practical use:
– States must ensure direct access to courts for persons seeking restoration of legal capacity- Total incapacitation should be replaced with more flexible supported decision-making systems- Regular review of capacity restrictions is required- Persons with disabilities should be able to participate in decisions about their lives- Any restrictions must be proportionate and consider individual circumstances

CASE OF ASSOCIATED NEWSPAPERS LIMITED v. THE UNITED KINGDOM

This decision concerns the compatibility of the UK’s conditional fee arrangement (CFA) regime with Article 10 of the European Convention on Human Rights, specifically regarding media defendants having to pay success fees and After the Event (ATE) insurance premiums. The key findings are:

The requirement for media defendants to pay success fees under CFAs is disproportionate and violates Article 10 of the Convention
However, the requirement to pay ATE insurance premiums does not violate Article 10, as ATE insurance can benefit successful defendants by allowing them to recover costs
The proportionality of ATE premiums must be assessed case-by-case, unlike success fees where there is a general rule against recoverability

The main provisions include:

The Court found a violation of Article 10 regarding success fees but no violation regarding ATE premiums
The applicant was awarded €15,000 for costs and expenses
The question of pecuniary damages was reserved for further submissions

The decision is significant as it confirms and builds upon previous case law regarding success fees while drawing an important distinction regarding ATE premiums. It establishes that while success fees are generally incompatible with Article 10 for media defendants, ATE premiums require case-specific analysis of proportionality.

CASE OF SHARAFANE v. DENMARK

The case concerns the European Court of Human Rights’ decision regarding the expulsion of an Iraqi national from Denmark with a six-year re-entry ban. The Court found that Denmark violated Article 8 of the European Convention on Human Rights (right to respect for private life).The key aspects of the decision are:

The applicant was born in Denmark and lived there for 23 years before being convicted of drug-related offenses and sentenced to 2.5 years imprisonment
The Danish courts ordered his expulsion with a 6-year re-entry ban instead of a permanent ban, considering that a permanent ban would violate international obligations
The Court found that for Iraqi nationals (visa group 5), a 6-year re-entry ban effectively amounts to a permanent ban due to extremely limited possibilities of returning even for short visits

The main provisions of the decision include:

The Court established that when domestic courts reduce a re-entry ban’s length to make it compatible with Article 8, this can only be considered a mitigating factor if there is a realistic prospect of return
For nationals from visa group 5 countries (including Iraq) without a spouse/partner, the possibility of re-entering Denmark remains purely theoretical
The Court rejected the argument that this creates discriminatory treatment based on nationality, as the impact on private life is more severe for those with no realistic prospect of return
The Court found that since the 6-year ban effectively amounted to a permanent ban in this case, the expulsion was disproportionate and violated Article 8

The most important provisions for practical application are:

The length of a re-entry ban can only be considered as mitigating factor if there is a realistic prospect of return
Courts must consider whether time-limited bans effectively amount to permanent bans for certain nationalities
The assessment of return prospects becomes relevant in cases where the length of the re-entry ban is decisive for compatibility with Article 8
Statistical evidence of actual return possibilities for different nationality groups may be relevant in assessing the realistic nature of return prospects

CASE OF AL-HABEEB v. DENMARK

The case concerns the expulsion of an Iraqi national from Denmark with a 12-year re-entry ban. The key aspects of the decision are:1. The European Court of Human Rights (ECHR) examined whether the expulsion of a settled migrant who had lived in Denmark for over 21 years was compatible with Article 8 of the Convention (right to respect for private and family life).2. The Court found that the Danish courts had properly balanced all relevant factors including:- The serious nature of the applicant’s crimes (assault of particularly dangerous nature)- His criminal history and previous warning about possible expulsion- His long residence and family ties in Denmark- The limited (12-year) rather than permanent nature of the re-entry ban3. The Court’s key findings were:- The time-limited nature of the re-entry ban was a significant factor making the expulsion compatible with Article 8- For persons with Danish spouses/partners, the prospect of re-entering Denmark after the ban expires is not purely theoretical- The Danish courts had made a thorough assessment of whether the expulsion order complied with international obligations- There were sufficient reasons justifying the interference with the applicant’s private and family lifeThe Court unanimously held there was no violation of Article 8 of the Convention, finding that the Danish authorities had properly weighed the applicant’s personal interests against public interest and that there were no strong reasons for the Court to substitute its own assessment.

CASE OF M.I. v. SWITZERLAND

The case concerns a homosexual Iranian national who sought asylum in Switzerland, claiming he would face persecution if returned to Iran. The Swiss authorities rejected his asylum application, leading to his appeal to the European Court of Human Rights.The Court found that Switzerland would violate Article 3 of the Convention (prohibition of torture and inhuman treatment) if they deported the applicant to Iran without a fresh assessment of two key aspects: (1) the risk of ill-treatment he would face as a homosexual man in Iran, and (2) whether state protection against ill-treatment from non-state actors would be available to him.The main provisions of the decision include:

The Court acknowledged that the applicant’s homosexuality was not disputed and that sexual orientation is a fundamental part of identity that no one should be forced to conceal
The Swiss authorities failed to properly assess whether Iranian authorities would be willing and able to protect the applicant from ill-treatment by non-state actors
The Court ordered that the interim measure preventing the applicant’s deportation should remain in force until the judgment becomes final
The Court awarded the applicant €7,000 for legal costs but found that the finding of a violation was sufficient just satisfaction for non-pecuniary damage

The most important aspects for implementation are:

States must conduct thorough assessments of risks faced by LGBTI asylum seekers, including both state and non-state persecution
The mere fact that an applicant has previously lived discreetly does not mean they can be expected to continue doing so to avoid persecution
When assessing asylum claims based on sexual orientation, authorities must consider whether state protection would be available and effective against persecution by non-state actors

CASE OF WINTHER v. DENMARK

1. Essence of the decision in 3-5 sentences:
The case concerns an expulsion order with a six-year re-entry ban against a Syrian national who had been living in Denmark for less than four years. The applicant was convicted of serious offenses including aggravated assault and blackmail, receiving an eight-month prison sentence. The European Court of Human Rights found that the Danish courts had properly balanced the applicant’s right to private and family life against public safety concerns, and that the expulsion order was proportionate and did not violate Article 8 of the European Convention on Human Rights.2. Structure and main provisions:
– The decision examines whether the expulsion order interferes with the applicant’s rights under Article 8 of the Convention
– The Court analyzes several criteria including: nature and seriousness of offenses, length of stay in Denmark, ties to host country and country of origin, and family situation
– Special attention is given to the duration of the re-entry ban and its proportionality
– The Court emphasizes the thorough assessment made by Danish courts at all levels3. Key provisions for practical use:
– The Court confirms that a six-year re-entry ban can be proportionate when serious crimes are committed by a person with relatively short legal residence
– The decision establishes that domestic courts should explicitly assess whether expelled persons have realistic prospects of readmission after a time-limited re-entry ban expires
– The Court reaffirms that it will not substitute its own assessment for that of national courts unless there are strong reasons to do so
– The judgment clarifies that the duration of re-entry bans should be considered as one factor in the overall proportionality assessment

CASE OF SAVURAN v. DENMARK

This decision concerns the case of Savuran v. Denmark, where the European Court of Human Rights examined the legality of expelling a Turkish national who had lived in Denmark for 30 years following his conviction for serious drug offenses.The Court analyzed whether the expulsion order with a six-year re-entry ban violated Article 8 of the European Convention on Human Rights (right to respect for private life). The key aspects considered were:

The seriousness of the offense (possession and sale of cocaine)
The length of stay in Denmark (born and lived there for 30 years)
The applicant’s ties to Denmark versus Turkey
The duration of the re-entry ban (reduced from permanent to 6 years)

The Court found that the Danish authorities had properly balanced all relevant factors and provided sufficient reasons for the expulsion. The Court emphasized that where domestic courts have carefully examined the facts and applied relevant human rights standards, it will not substitute its own assessment unless there are strong reasons to do so.The key provisions of the decision include:

Confirmation that ‘very serious reasons’ are required to justify expulsion of settled migrants
Recognition that the length of re-entry ban is an important but not necessarily decisive factor
Emphasis on the margin of appreciation given to national courts when they properly apply Convention standards

The Court ultimately found no violation of Article 8, concluding that the interference with the applicant’s private life was proportionate and supported by relevant and sufficient reasons.

CASE OF SHEHU v. ALBANIA

The case Shehu v. Albania concerns the non-enforcement of a 1999 domestic court judgment regarding a land dispute, where the applicant was awarded the right to have his land vacated and receive compensation. Despite multiple attempts and court orders, the bailiff failed to enforce the judgment, citing various technical obstacles.The European Court of Human Rights found that Albania violated Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 due to the State’s failure to enforce the judgment effectively. The Court emphasized that execution of a judgment is an integral part of a fair trial, and the State has a positive obligation to organize an effective enforcement system.Key provisions of the decision include:

The State’s obligation to act diligently in assisting successful claimants in executing judgments, even in cases involving private parties
The Court’s recognition that the bailiff’s failure to exercise its powers constituted a violation of the applicant’s right to a fair hearing
The confirmation that pending revision proceedings do not affect the enforceability of the original judgment until it is actually revised
The Court’s emphasis on the State’s responsibility to ensure judgment enforcement without undue delays

The decision reaffirms the principle that the right to court access would be illusory if a State’s legal system allowed final, binding judicial decisions to remain inoperative. The Court ordered that Albania maintains its obligation to enforce the 1999 judgment as long as it remains enforceable, although no monetary compensation was awarded as the applicant did not submit any claims for just satisfaction.

CASE OF RIMSCHI AND OTHERS v. THE REPUBLIC OF MOLDOVA

The case concerns the unfairness of criminal proceedings against several applicants in Moldova who were convicted of manufacturing and circulating counterfeit US dollar banknotes.The key aspects of the decision are related to police entrapment through an undercover informant (V.F.) who induced the applicants to commit larger-scale offenses than they would have otherwise committed. The Court found violations of Article 6 § 1 of the Convention (right to a fair trial) due to improper examination of entrapment claims by domestic courts.The main provisions of the decision include:

The Court found that V.F.’s actions, directed by police, went beyond merely joining an ongoing offense and instead instigated one on a larger scale by demanding increasingly large quantities of counterfeit notes
The domestic courts failed to properly analyze the role of V.F. and his confirmed tendency to incite offenses, making only a superficial examination of the entrapment claims
The Court awarded compensation ranging from 3,600 to 7,500 euros to different applicants for non-pecuniary damage
The Court emphasized that when undercover operations lack initial judicial supervision, courts must pay additional attention to examining entrapment claims

The most important provisions for practical use are:

Police cannot expand undercover operations by continuously increasing the scale of criminal activity through their informants
Courts must thoroughly examine entrapment claims, especially regarding the role and actions of undercover agents
When key witness testimony is the main evidence, courts must ensure proper examination of such witnesses during trial
The lack of judicial supervision of undercover operations requires more detailed scrutiny by courts when examining potential entrapment

CASE OF TANYAŞ AND OTHERS v. TÜRKİYE

The case concerns the arrest and pre-trial detention of 240 applicants in Turkey following the coup attempt of July 15, 2016. The applicants were detained on suspicion of membership in FETÖ/PDY (Fetullahist Terror Organisation), which Turkish authorities believed was behind the coup attempt.The key aspects of the decision are:

The Court found that the detention orders lacked sufficient evidence of reasonable suspicion that would justify the applicants’ detention
The use of ByLock messaging system alone was deemed insufficient to constitute reasonable suspicion
Other circumstantial evidence like bank accounts, publications, or employment connections were also found inadequate to justify detention
The Court concluded there was a violation of Article 5 § 1 of the Convention regarding the lack of reasonable suspicion for initial detention

The main provisions of the decision include:

The Court awarded €5,000 to each applicant (except for 6 specific cases) for non-pecuniary damage and costs
The Court rejected claims for pecuniary damage
The decision emphasized that even during a state of emergency, detention measures must be strictly required by the situation
The Court found that general references to Article 100 of Turkish Criminal Procedure Code were insufficient to justify detention

CASE OF MANAV AND OTHERS v. TÜRKİYE

The case concerns the arrest and pre-trial detention of 128 applicants in Turkey after the coup attempt of July 15, 2016. The applicants were suspected of membership in FETÖ/PDY organization, which Turkish authorities considered responsible for the coup attempt. The key issue was whether there was reasonable suspicion justifying the initial detention of the applicants under Article 5 § 1 of the Convention. The Court found that the detention orders were based mainly on circumstantial evidence like use of ByLock messaging system, banking activities, subscriptions to certain publications, possession of US dollar bills, and employment/membership in certain institutions. The Court concluded that there was a violation of Article 5 § 1 of the Convention because:

The detention orders contained only general references without specifying concrete evidence
Use of ByLock alone was not sufficient to constitute reasonable suspicion
Other circumstantial evidence benefited from presumption of legality and could not reasonably demonstrate membership in a terrorist organization
The government failed to provide other facts capable of satisfying reasonable suspicion requirement

The Court awarded each applicant (except for 14 specific applications) EUR 5,000 in compensation for non-pecuniary damage and costs. The decision establishes important standards for evaluating reasonable suspicion in detention cases, particularly regarding circumstantial evidence and general references in detention orders.

CASE OF HRABAR v. CROATIA

The case concerns a road traffic accident in Croatia where Ms. Ankica Hrabar sustained a spine injury resulting in 100% disability due to a muddy road. The applicant sued two public road companies for compensation, but after nearly 20 years of litigation, her claim was ultimately dismissed by the Supreme Court because she had sued the wrong defendants.The European Court of Human Rights found that there had been a violation of Article 6 § 1 of the Convention (right to a fair trial) because the Supreme Court made a manifest factual error in its judgment. The Supreme Court incorrectly stated that lower courts had established the damage occurred due to a failure in road cleaning, when in fact they had found it was due to a failure in road maintenance. This error led to the dismissal of the applicant’s case on the grounds that she had sued the wrong defendants (the road companies instead of local authorities).The Court awarded the applicant €11,000 in respect of non-pecuniary damage and €1,670 for costs and expenses. Regarding pecuniary damage, the Court indicated that reopening the domestic proceedings would be the most appropriate remedy. The Court also found it unnecessary to examine separately the complaint under Article 1 of Protocol No. 1 to the Convention.Key provisions of the judgment include:

The recognition that a ‘denial of justice’ can result from a decision based on a manifest factual or legal error
The finding that the Supreme Court’s error impaired the very essence of the applicant’s right of access to a court
The determination that the applicant could no longer bring a new civil action due to the elapsed statutory limitation period
The conclusion that domestic reopening of proceedings would be the most appropriate remedy for pecuniary damage

CASE OF BAYSAL v. TÜRKİYE

The case concerns the refusal of Turkish prison authorities to deliver an English-language book titled ‘Kosovo: A Short History’ to a detained person, Mr. Mustafa Baysal, which constituted a violation of Article 10 of the European Convention on Human Rights (freedom of expression).The Court found that the prison authorities’ refusal to deliver the book for approximately four years, solely because it was in English and they couldn’t assess its content without translation, was not based on any lawful grounds specified in domestic law. The domestic legislation only allowed withholding publications if they were banned by court order, jeopardized prison security, or contained obscene content.Key provisions of the decision include:

The interference with the right to receive information was not ‘in accordance with the law’ as no Turkish law or regulation allowed withholding publications based solely on their language
The Court rejected the government’s arguments about the possibility of translation at the prisoner’s expense, as this requirement was not stipulated in the law
The fact that the book was eventually delivered to the applicant and that the law was later amended did not deprive him of victim status, as the violation was never acknowledged and no redress was offered

The Court’s decision establishes an important precedent regarding prisoners’ rights to access foreign language publications and the limits of prison authorities’ discretion in restricting such access. The judgment emphasizes that any restrictions on prisoners’ rights must have a clear legal basis and cannot be based on administrative convenience.

CASE OF GIRDAUSKIENĖ v. LITHUANIA

The case concerns a dispute over the reimbursement of civil litigation costs in Lithuania. The European Court of Human Rights (ECHR) found a violation of Article 6 § 1 of the Convention (right to a fair trial) due to disproportionate distribution of litigation costs that effectively restricted the applicant’s access to court.The case originated from a property dispute where the applicant, Ms. Girdauskienė, challenged the decision of her building’s owners’ association regarding the status of a fourth-floor hallway. While she partially succeeded in her claim before the Supreme Court of Lithuania, she was ordered to pay litigation costs that were more than double the amount she was reimbursed.The Court’s key findings were:

The Supreme Court’s mechanical approach to distributing litigation costs, without considering qualitative success of the claim, was problematic
Despite proving that the owners’ association had breached her property rights, the applicant had to pay approximately EUR 2,118 while being reimbursed only EUR 950
The distribution of costs impaired the very essence of the applicant’s right of access to court

The Court awarded the applicant EUR 8,500 in respect of both pecuniary and non-pecuniary damage, emphasizing that the right of access to court must be practical and effective, not theoretical or illusory. The Court rejected the applicant’s complaint under Article 13 regarding the lack of possibility to challenge the Supreme Court’s decision on costs.

CASE OF KESKIN AND OTHERS v. TÜRKİYE

The European Court of Human Rights (ECHR) issued a judgment concerning the arrest and pre-trial detention of 131 applicants in Turkey following the coup attempt of July 15, 2016. The applicants were detained on suspicion of membership in FETÖ/PDY organization, which Turkish authorities considered responsible for the coup attempt.The Court found that Turkey violated Article 5 § 1 of the Convention regarding the lack of reasonable suspicion at the time of the applicants’ initial pre-trial detention. The Court determined that the detention orders were insufficiently justified, relying mainly on general references without specific assessment of individual evidence.The key provisions of the decision include:

The Court found that using ByLock messaging system alone was not sufficient to constitute ‘reasonable suspicion’ for detention
Other circumstantial evidence like banking activities, subscriptions to publications, possession of dollar bills, and employment in certain institutions were deemed insufficient to justify detention
The Court awarded EUR 5,000 to each applicant (except 11 specific cases) for non-pecuniary damage and costs

The most important aspects for practical application are:

Detention orders must contain specific assessment of individual evidence rather than general references
Circumstantial evidence alone cannot justify pre-trial detention without other concrete facts
Even during a state of emergency, detention measures must be strictly required by the situation and properly justified