CASE OF A AND B v. MALTA
Here’s a breakdown of the European Court of Human Rights’ decision in the case of A and B v. Malta:
1. **Essence of the Decision:** The case concerned a father’s complaint about the impartiality of a judge in childcare proceedings, as well as the fairness of decisions regarding his son’s contact with the mother. The father argued that the judge was biased because the mother’s lawyer had previously represented the judge in her own separation proceedings. The Court found no violation of Article 6 (right to a fair trial) or Article 8 (right to family life) of the European Convention on Human Rights. It concluded that sufficient time had passed to dilute any professional ties between the judge and the lawyer, and that the domestic courts had provided sufficient reasons for their decisions regarding contact rights.
2. **Structure and Main Provisions:**
* The judgment begins with an introduction outlining the case.
* It details the facts, including the background of the separation proceedings and the specific events that led to the complaint.
* It outlines the relevant domestic legal framework and practice in Malta, including laws regarding judicial recusal and family matters.
* The Court then examines the alleged violation of Article 6, addressing admissibility issues such as whether Article 6 applies to recusal proceedings and whether the second applicant (the child) can be considered a victim in this context.
* The Court analyzes the merits of the Article 6 complaint, applying both subjective and objective tests for impartiality.
* It then addresses the alleged violation of Article 8, again considering admissibility and merits, focusing on whether the decisions regarding contact rights were in the child’s best interests.
* The judgment concludes with the Court’s decision, holding that there were no violations of either Article 6 or Article 8.
* Concurring and dissenting opinions from judges are attached, providing additional perspectives on the case.
3. **Key Provisions for Use:**
* **Impartiality Test:** The decision reinforces the importance of both subjective and objective impartiality in ensuring a fair trial. It clarifies that objective impartiality must be assessed based on whether there are ascertainable facts that may raise doubts about a judge’s impartiality.
* **Recusal Procedures:** The Court emphasizes the need for adequate procedures to address concerns about judicial bias, including disclosure of potential conflicts of interest.
* **Balancing Interests in Family Cases:** The decision highlights the need to balance the interests of all parties involved, especially the child’s best interests, when making decisions about contact rights.
* **Small Jurisdictions:** The Court acknowledges that in smaller jurisdictions, certain relationships between legal professionals may be unavoidable, and excessively strict standards for recusal motions could unduly hamper the administration of justice.
* **Constitutional Redress:** The decision notes that constitutional redress proceedings can, in some circumstances, remedy defects in lower-instance proceedings, but also points out that such proceedings can be lengthy and may not always address Article 6 complaints.
This decision provides valuable guidance on the application of Article 6 and Article 8 in cases involving judicial impartiality and family law, particularly in the context of smaller jurisdictions.
CASE OF AKSÜNGÜR AND OTHERS v. SERBIA
Here’s a breakdown of the European Court of Human Rights’ decision in the case of Aksüngür and Others v. Serbia:
**1. Essence of the Decision:**
The European Court of Human Rights (ECtHR) ruled that Serbia violated Article 1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms in the case of five applicants who had their cash confiscated for failing to declare sums exceeding 10,000 euros when entering or transiting through Serbia. The Court found that the broad and imprecise legislative framework, combined with the domestic courts’ failure to conduct a meaningful analysis of the necessary sanction in each case, did not ensure a fair balance between the general interest and the applicants’ right to the peaceful enjoyment of their property. The ECtHR emphasized that the domestic courts did not adequately assess the proportionality of the confiscation measures, considering factors such as the applicants’ intent, the origin of the money, and other relevant circumstances. As a result, the Court concluded that the applicants had to bear an individual and excessive burden.
**2. Structure and Main Provisions:**
* **Introduction:** The judgment begins by outlining the case’s subject matter, which concerns the confiscation of money from the applicants for breaching the obligation to declare sums exceeding 10,000 euros.
* **Facts:** This section details the factual background, including the applicants’ nationalities, their entry or transit through Serbia, the customs controls, and the seizure of cash. It also describes the misdemeanour proceedings against the applicants, the decisions of the domestic courts, and additional facts concerning the origin of the confiscated cash.
* **Relevant Legal Framework and Practice:** This part presents the domestic law and practice, including the Constitution of the Republic of Serbia, provisions regarding the transfer of cash across the border, the Foreign Currency Transactions Act, the Money Laundering Act, and the Misdemeanours Act. It also discusses the practice of the Constitutional Court and relevant international material, such as Council of Europe and European Union law.
* **The Law:** This section includes the joinder of the applications and the alleged violation of Article 1 of Protocol No. 1 to the Convention. It covers admissibility and merits, including the parties’ submissions and the Court’s assessment. The Court’s assessment addresses whether there was an interference with the applicants’ right of property, the applicable rule, and whether the interference was justified.
* **Application of Article 41 of the Convention:** This section deals with just satisfaction, including pecuniary and non-pecuniary damage, as well as costs and expenses.
* **Appendix:** The appendix provides additional details, such as the applicants’ names, dates of birth, nationalities, legal representatives, customs control information, dates of court decisions, fines imposed, confiscated amounts, and constitutional appeals.
**3. Main Provisions and Importance:**
* **Violation of Article 1 of Protocol No. 1:** The Court held that Serbia violated Article 1 of Protocol No. 1 to the Convention, which protects the right to the peaceful enjoyment of possessions.
* **Disproportionate Interference:** The Court found that the confiscation of the applicants’ money was a disproportionate interference with their right to property.
* **Broad and Imprecise Legislative Framework:** The Court criticized the broad and imprecise legislative framework in Serbia, which allowed for arbitrary application of the confiscation measures.
* **Failure to Conduct Meaningful Analysis:** The Court emphasized that the domestic courts failed to conduct a meaningful analysis of the necessary sanction in each case, considering factors such as the applicants’ intent, the origin of the money, and other relevant circumstances.
* **Just Satisfaction:** The Court awarded the applicants the full amounts that were confiscated from them in breach of Article 1 of Protocol No. 1, plus any tax that may be chargeable, as well as costs and expenses.
**** This decision may have implications for Ukrainians and Ukrainian citizens who have had their assets confiscated in Serbia under similar circumstances. They may be able to rely on this judgment to challenge the legality and proportionality of such measures.
CASE OF H.Q. AND OTHERS v. HUNGARY
Here’s a breakdown of the European Court of Human Rights’ (ECtHR) decision in the case of H.Q. and Others v. Hungary:
1. **Essence of the Decision:**
The ECtHR ruled that Hungary violated the rights of three asylum seekers (from Afghanistan and Syria) due to their removal to Serbia. The Court found that Hungary conducted collective expulsions, failed to properly assess the asylum seekers’ risks in Serbia, and did not provide effective remedies to challenge their removal. The “embassy procedure,” requiring asylum seekers to apply for entry at Hungarian embassies in third countries, was deemed insufficient for providing genuine access to international protection. The Court emphasized Hungary’s obligation to prevent further collective expulsions and ensure access to a fair asylum process.
2. **Structure and Main Provisions:**
* **Introduction and Facts:** The judgment details the applicants’ individual circumstances, including their entry into Hungary, attempts to seek asylum, and the process of their removal to Serbia. It outlines the Hungarian legal framework, including the Asylum Act, the State Border Act, and the “embassy procedure” established by the 2020 Transitional Act.
* **Relevant Legal Framework and Practice:** This section summarizes domestic laws and practices relevant to the case, including provisions on asylum, border control, and administrative justice. It also references relevant international law, EU law, and reports from organizations like the UNHCR and the Council of Europe.
* **Joinder of Applications and Preliminary Issues:** The Court decided to examine the applications jointly due to their similar subject matter. It also addressed preliminary arguments from the Hungarian government regarding the applicants’ alleged lack of interest in pursuing the case and the establishment of facts related to one of the applicants.
* **Article 4 of Protocol No. 4 (Collective Expulsion):** The Court found a violation of this article, determining that the applicants’ removal to Serbia constituted a collective expulsion because their individual circumstances were not reasonably and objectively examined.
* **Article 3 (Risk of Ill-Treatment):** The Court found a violation of the procedural limb of Article 3, as the Hungarian authorities failed to adequately assess the risk that the applicants would face ill-treatment or lack of access to an adequate asylum procedure in Serbia.
* **Article 13 (Effective Remedy):** The Court found a violation of Article 13 in conjunction with Article 4 of Protocol No. 4, as the applicants did not have an effective remedy to challenge their removal and ensure a thorough examination of their complaints.
* **Article 46 (Binding Force and Execution of Judgments):** The Court emphasized Hungary’s obligation to take measures to prevent further collective expulsions and ensure genuine access to international protection.
* **Article 41 (Just Satisfaction):** The Court awarded the applicants compensation for non-pecuniary damage and costs and expenses.
3. **Main Provisions for Use:**
* **Prohibition of Collective Expulsion:** The decision reinforces the principle that expulsions must be based on a reasonable and objective examination of each individual’s circumstances.
* **Duty to Assess Risks in the Receiving Country:** States must thoroughly examine the risk of asylum seekers being denied access to an adequate asylum procedure in the country to which they are being removed.
* **Right to an Effective Remedy:** Individuals facing expulsion must have access to a remedy that allows them to challenge the decision and have their complaints thoroughly examined.
* **Ineffectiveness of the “Embassy Procedure”:** The Court’s criticism of the “embassy procedure” highlights the importance of providing genuine and effective access to asylum procedures within the country’s territory and at its borders.
* **General Measures:** The decision emphasizes the need for Hungary to take immediate measures to prevent further collective expulsions and ensure access to international protection.
**** This decision has implications for Ukraine and Ukrainians as the Hungarian embassy in Kyiv was one of the embassies where a declaration of intent could be made.
CASE OF M.L. v. NORTH MACEDONIA
Here’s a breakdown of the M.L. v. North Macedonia decision:
**1. Essence of the Decision:**
The European Court of Human Rights found North Macedonia in violation of Article 8 (right to family life) of the Convention. The case concerned a barring order that prohibited the applicant from approaching his nine-year-old daughter due to criminal proceedings against him for alleged violence. The Court acknowledged the initial order as a reasonable precautionary measure. However, it criticized the domestic courts for insufficient reasoning in confirming the order on appeal, lacking an autonomous risk assessment, failing to provide reasoned decisions during the mandatory periodic reassessments, and not involving the applicant in these reassessments. These procedural shortcomings, according to the Court, did not adequately protect the applicant’s right to family life.
**2. Structure and Main Provisions:**
* **Introduction:** Sets out the core issue – the barring order and the alleged failure to properly reassess it.
* **Facts:** Details the applicant’s divorce, custody disputes, and the criminal proceedings initiated against him. It outlines the barring order, the appeals process, and the eventual dismissal of the criminal complaints.
* **Relevant Legal Framework:** Cites North Macedonian law regarding precautionary measures in criminal proceedings, relevant international conventions (UN Convention on the Rights of the Child, Istanbul Convention), and Council of Europe guidelines on child-friendly justice.
* **Law:** This section is the heart of the decision.
* **Alleged Violation of Article 8:** Frames the legal issue.
* **Admissibility:** Addresses the government’s objection regarding the application’s timeliness, which the Court dismisses. It also declares one of the applicant’s complaints (regarding access to the prosecutor’s case file) inadmissible.
* **Merits:** This is where the Court presents the arguments of both sides (applicant and government) and then provides its own assessment, applying established principles of Article 8 jurisprudence. The Court finds a violation based on procedural shortcomings.
* **Application of Article 41:** Deals with just satisfaction (compensation). The Court awards the applicant EUR 4,500 for non-pecuniary damage and EUR 1,460 for costs and expenses.
**3. Main Provisions for Use:**
* **Emphasis on Procedural Fairness:** The decision underscores the importance of thorough and reasoned decision-making when restricting parental access to children, even in the context of criminal proceedings.
* **Duty of Autonomous Risk Assessment:** Courts must conduct their own comprehensive assessment of the risks involved, rather than simply relying on allegations.
* **Meaningful Periodic Reassessment:** Mandatory reassessments of restrictive orders must be based on updated information and involve the affected party.
* **Balancing Interests:** The decision reiterates the need to strike a fair balance between the interests of the child and the parent, with the child’s best interests being paramount.
* **State’s Positive Obligations:** The judgment highlights the State’s duty to protect individuals, especially children, from ill-treatment and to respond promptly and diligently to complaints of domestic violence.
I hope this is helpful for your journalistic purposes.
CASE OF PĂCURAR v. ROMANIA
Here’s a breakdown of the Păcurar v. Romania decision:
1. **Essence of the Decision:** The European Court of Human Rights (ECtHR) found no violation of Article 6 § 1 (right to a fair trial) or Article 1 of Protocol No. 1 (protection of property) in the case of Mr. Păcurar, a former high-ranking Romanian police chief. Romanian authorities had confiscated assets from Mr. Păcurar that he could not adequately explain the source of, based on Romanian laws concerning integrity in public office. The ECtHR concluded that the proceedings were fair, Mr. Păcurar had ample opportunity to present his case, and the confiscation was a proportionate measure in the context of fighting corruption.
2. **Structure and Main Provisions:**
* **Introduction:** Sets out the case’s subject matter: the fairness of asset confiscation proceedings and the alleged violation of property rights.
* **Facts:** Details Mr. Păcurar’s background, the Romanian legal framework regarding asset declarations and verification, and the specific procedure followed in his case. This includes the National Integrity Agency’s (ANI) investigation, the Commission for the Verification of Assets’ involvement, and the Cluj Court of Appeal and High Court of Cassation and Justice’s decisions.
* **Relevant Legal Framework and Practice:** Provides an overview of the Romanian Constitution, laws concerning asset declarations, the role of the ANI, and relevant domestic court practice. It also includes international material regarding the EU’s Cooperation and Verification Mechanism (CVM) and Council of Europe recommendations.
* **Law:**
* **Preliminary Remark:** States that the scope of the case is limited to the facts and complaints raised by the applicant.
* **Alleged Violation of Article 6 § 1:** Addresses the applicant’s claim of an unfair trial. The Court examines the applicability of Article 6 § 1, both under its criminal and civil limbs, and ultimately finds it applicable under its civil limb. It then assesses the fairness of the proceedings and concludes that there was no violation.
* **Alleged Violation of Article 1 of Protocol No. 1:** Addresses the applicant’s claim of a violation of his property rights. The Court examines whether there was an interference with his right to peaceful enjoyment of possessions, whether the interference was lawful, whether it pursued a legitimate aim, and whether it was proportionate. It concludes that there was no violation.
* **FOR THESE REASONS, THE COURT:** States the Court’s decision.
3. **Main Provisions and Importance:**
* **Fairness of Proceedings:** The ECtHR emphasized that Mr. Păcurar was represented by a lawyer, received reasoned replies to his allegations, and the burden of proof was applied in compliance with Romanian law.
* **Proportionality of Asset Confiscation:** The Court found that the non-conviction-based confiscation of unexplained assets was proportionate, given the clear legal framework on integrity in public office and Romania’s wide margin of appreciation in fighting corruption.
* **Margin of Appreciation:** The decision highlights the wide margin of appreciation afforded to states in implementing anti-corruption measures, particularly in country-specific contexts.
* **Sufficient Safeguards:** The ECtHR noted that Mr. Păcurar’s financial situation was duly examined by domestic courts in adversarial proceedings, with sufficient safeguards in place to ensure a fair balance between competing interests.
I hope this analysis is helpful for your journalistic purposes!
CASE OF SAGIR AND OTHERS v. GREECE
Here’s a breakdown of the Sagir and Others v. Greece decision:
1. **Essence of the Decision:**
The European Court of Human Rights (ECHR) found Greece in violation of Article 11 (freedom of association) of the Convention. The case concerned the Greek courts’ refusal to register the “Cultural Association of Turkish women of the Prefecture of Xanthi.” The Greek courts argued that the name was misleading and could cause confusion because it implied the members were Turkish nationals, while membership was restricted to Greek citizens. The ECHR disagreed, stating that the reasons given by the domestic courts were not sufficient to justify the restriction on freedom of association. The Court emphasized that the right to free self-identification is a cornerstone of international law and that the association’s name did not pose a threat to public order.
2. **Structure and Main Provisions:**
* **Introduction:** Sets the stage by outlining the case’s subject matter: the refusal to register the applicants’ association.
* **Facts:** Details the factual background, including the aims of the association, the membership criteria, and the decisions of the Greek courts at various levels.
* **Relevant Legal Framework:** Cites the Greek Constitution and Civil Code provisions related to the right to form associations and the requirements for registration.
* **Alleged Violation of Article 11:** This section forms the core of the judgment.
* **Admissibility:** Declares the application admissible, meaning it meets the criteria for the Court to hear the case.
* **Merits:** Examines the substance of the complaint.
* **The Parties’ Submissions:** Summarizes the arguments made by the applicants (the association members), the Greek Government, and a third-party intervener (Greek Helsinki Monitor).
* **The Court’s Assessment:** This is where the ECHR lays out its legal reasoning and analysis. It references previous case law, establishes general principles regarding freedom of association, and applies those principles to the specific facts of the case.
* **Application of Articles 41 and 46:** Addresses just satisfaction (compensation) for the applicants and the measures Greece needs to take to comply with the judgment.
* **For These Reasons, the Court:** Formally states the Court’s decision: finding a violation of Article 11 and ordering Greece to pay damages and costs.
* **Appendix:** Lists the names of the applicants.
3. **Main Provisions and Importance:**
* **Emphasis on Freedom of Association for Minorities:** The Court explicitly recognizes the importance of freedom of association for individuals belonging to minorities, including national and ethnic minorities.
* **Reiteration of the Right to Self-Identification:** The judgment underscores that the right to free self-identification is a cornerstone of international law governing the protection of minorities.
* **Scrutiny of “Pressing Social Need”:** The Court rigorously examines whether there was a “pressing social need” to justify the restriction on the association’s registration. It found that the reasons given by the Greek courts (avoiding confusion) were not sufficient.
* **Indication of Individual Measures:** The Court suggests that reopening the proceedings at the domestic level would be the most appropriate way to remedy the violation and provide redress to the applicants.
* **Violation of Article 11:** The Court found that the reasons relied on by the authorities for not registering the applicants’ association were not relevant and sufficient. Accordingly, it has not been demonstrated that the restrictions that were applied in the present case, namely the non-registration of the applicants’ association, pursued a “pressing social need”.
I hope this is helpful!
CASE OF BAGIROVA AND OTHERS v. AZERBAIJAN
The European Court of Human Rights issued a judgment on just satisfaction in the case of Bagirova and Others v. Azerbaijan, concerning the expropriation of the applicants’ properties for State needs. The Court addressed claims for pecuniary and non-pecuniary damage under Article 41 of the Convention, following a previous judgment that found a violation of Article 1 of Protocol No. 1 due to the unlawful expropriation. The Court considered the submissions from both the applicants and the Azerbaijani Government regarding the valuation of the properties and the appropriate compensation. Ultimately, the Court awarded varying amounts for pecuniary damage to several applicants, based on the principles established in previous case law, and also granted awards for non-pecuniary damage. The Court also addressed the issue of legal costs and expenses, awarding sums to some applicants while dismissing others due to lack of supporting documents.
The decision begins by outlining the procedure and background of the case, referencing the principal judgment and the subsequent submissions from the parties regarding just satisfaction. It then addresses a preliminary issue regarding the death of one of the applicants and the standing of her heir to continue the application. The core of the decision focuses on Article 41 of the Convention, specifically addressing pecuniary and non-pecuniary damage, as well as costs and expenses. The Court assesses the parties’ submissions, including valuation reports and arguments, and applies relevant case law to determine the appropriate awards. The decision culminates in a disposition outlining the specific amounts to be paid to each applicant, along with interest and tax considerations, and dismisses the remaining claims for just satisfaction. This judgment builds upon the principles established in previous cases such as Guiso-Gallisay v. Italy and Akhverdiyev v. Azerbaijan, providing further clarification on the assessment of pecuniary damage in expropriation cases.
The most important provisions of this decision relate to the assessment of pecuniary damage resulting from unlawful expropriation. The Court emphasizes the need for applicants to provide substantiated valuations of their properties and relevant documents to prove the existence and amount of damage. It also highlights the importance of necessary adjustments to the market value of properties, as outlined in the Akhverdiyev case. The decision clarifies that the Court will consider valuation reports submitted by both parties, but it may give more weight to the government’s report if the applicant’s report lacks substantiation or contains inconsistencies. Furthermore, the Court reiterates that it is not its role to determine whether applicants had a legitimate expectation of additional compensation under domestic law if this issue was not raised in the initial application.
CASE OF D.G. AND S.G. v. SERBIA
Here’s a breakdown of the European Court of Human Rights’ decision in the case of D.G. and S.G. v. Serbia:
1. **Essence of the Decision:**
The European Court of Human Rights found Serbia in violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the right to family life. The case involved the placement of the applicants’ son, M., in foster care and the subsequent handling of their parental rights. The Court determined that the Serbian authorities failed to take adequate and timely steps to address the child’s continued placement in foster care and to ensure regular contact between the parents and their son. Additionally, the length of the proceedings to divest the parents of their parental rights was deemed excessively long, further infringing on their right to family life. The Court emphasized that the authorities’ lack of prompt response to the parents’ requests for more regular contact with their child adversely affected their relationship with him.
2. **Structure and Main Provisions:**
The judgment begins with an introduction outlining the case’s subject matter: the placement of the applicants’ son in foster care, the lack of regular contact, and the length of proceedings to terminate parental rights. The facts section details the background, including the initial placement of M. in foster care in 2017 based on allegations of neglect. It describes the appeals and submissions made by the applicants, particularly the mother, regarding contact with her son and challenges to the foster care decision. The judgment then outlines the proceedings to divest the applicants of their parental rights, initiated in 2019, including expert reports and court decisions. It also covers remedies used by the applicants concerning the length of proceedings and actions to protect the child’s rights. The relevant legal framework and practice in Serbia are presented, including constitutional provisions and the Family Act. The Court then assesses the admissibility of the complaints, focusing on the exhaustion of domestic remedies. The merits of the case are examined, with arguments from both the applicants and the government, leading to the Court’s findings of violations of Article 8. Finally, Article 41 of the Convention is addressed, though no claim for just satisfaction was made.
3. **Main Provisions for Use:**
* **Emphasis on Timely Action:** The decision underscores the importance of authorities taking prompt and appropriate action to address issues related to child placement and parental contact. Delays can have detrimental effects on family relationships.
* **Importance of Regular Contact:** The judgment highlights the necessity of ensuring regular contact between parents and children, especially when a child is in foster care, to maintain family bonds and facilitate potential reunification.
* **Fair Balance of Interests:** The decision reiterates the need for domestic authorities to strike a fair balance between the interests of the child and those of the parents, with the child’s best interests being paramount.
* **Adequate Assessment and Review:** The authorities must conduct thorough assessments of the family situation and regularly review decisions regarding child placement to determine if circumstances have changed and if reunification is possible.
* **Procedural Safeguards:** The decision emphasizes the importance of procedural safeguards to ensure that parents are involved in the decision-making process and have access to effective remedies.
**** This case has implications for Ukraine and Ukrainians, particularly in situations involving the removal of children from their families due to conflict or other crises. It highlights the importance of maintaining family connections and ensuring that any interventions by authorities are both necessary and proportionate.
CASE OF KAROVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
The European Court of Human Rights (ECHR) rendered a judgment in the case of Karović and Others v. Bosnia and Herzegovina, concerning the non-enforcement of domestic court decisions against the Sarajevo Canton. The applicants complained about the failure to enforce judgments in their favor regarding unpaid work-related benefits. The Sarajevo Canton had adopted an enforcement plan, promising to enforce all outstanding decisions within five years, but the applicants argued this was insufficient and discriminatory. The ECHR found no violation of Article 6 § 1 of the Convention (right to a fair trial) or Article 1 of Protocol No. 1 (protection of property), accepting the Sarajevo Canton’s enforcement plan as an acceptable solution given the scale of the debt and the efforts made. The Court emphasized that if the Canton fails to adhere to its plan, the applicants could reapply to the Constitutional Court and then to the ECHR.
The decision begins with an introduction outlining the essence of the case, followed by a presentation of the facts, including the domestic court judgments in favor of the applicants, the Sarajevo Canton’s enforcement plan, and the Constitutional Court’s decisions related to the matter. It then addresses the legal arguments, including the joinder of the applications and the alleged violation of Article 6 § 1 and Article 1 of Protocol No. 1. The admissibility of the applications is discussed, considering the Government’s objection regarding the exhaustion of domestic remedies. The Court then assesses the merits of the case, considering the parties’ submissions and the relevant legal principles. Finally, the decision concludes with the Court’s findings, declaring the applications admissible and holding that there has been no violation of the Convention. This decision does not introduce significant changes compared to previous versions, but rather applies established principles to the specific context of the Sarajevo Canton’s enforcement plan.
The most important provision of this decision is the acceptance of the Sarajevo Canton’s enforcement plan as an acceptable framework for addressing the non-enforcement of domestic decisions, despite the extended timeframe and the two-tier system it introduces. This acceptance is conditional, as the Court emphasizes that the applicants retain the right to seek redress if the Canton fails to adhere to the plan. The decision also clarifies that while an indication of the specific year of enforcement for each non-enforced decision is preferable, it is not a necessary condition for an enforcement plan to be accepted by the Court, as long as all decisions are planned to be enforced within a reasonable timeframe.
CASE OF ÇOBANTUR TURİZM TİCARET VE NAKLİYAT LTD. ŞTİ. v. SERBIA
The European Court of Human Rights (ECtHR) found Serbia in violation of Article 1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the right to property. The case originated from the seizure and subsequent confiscation of a vehicle belonging to a Turkish company, Çobantur Turizm Ticaret ve Nakliyat Ltd. Şti., which was used to transport illegal migrants. The Serbian courts ordered the confiscation of the vehicle, regardless of the company’s lack of involvement or knowledge of the crime. The ECtHR concluded that the mandatory confiscation, without considering the company’s good faith or providing a realistic opportunity for compensation, imposed an excessive burden and failed to strike a fair balance between the public interest and the company’s property rights. Consequently, the Court declared the application admissible and ruled in favor of the applicant company. The Court did not award any compensation under Article 41 because the applicant company did not properly formulate a claim for just satisfaction.
The decision is structured as follows: It begins with the procedural history and the facts of the case, outlining the seizure and confiscation of the vehicle and the domestic court proceedings. It then moves to the Court’s assessment, where it declares the application admissible and examines the proportionality of the confiscation measure. The Court refers to established principles on confiscation measures, particularly referencing the B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia case. It emphasizes that the domestic courts’ interpretation of the law, mandating confiscation regardless of the owner’s involvement, was problematic. Finally, the decision addresses the application of Article 41 regarding just satisfaction, ultimately making no award due to the applicant’s failure to submit a proper claim. There are no indications of changes compared to previous versions of the decision.
The most important provision of this decision is the emphasis on the need for proportionality when implementing confiscation measures. The ECtHR highlights that domestic legislation and practice must consider the degree of fault or care attributable to the owner of the property and provide a reasonable opportunity to present their case. The ruling underscores that mandatory confiscation, without regard to the owner’s good faith or involvement in the crime, can violate Article 1 of Protocol No. 1. This decision reinforces the importance of balancing the public interest with the protection of individual property rights and ensures that bona fide owners are not unduly penalized for offenses they did not participate in or were unaware of.
