Newsletter n. 30

Below are the main updates concerning acts and case-law relevant to the protection of fundamental rights, as published in the web site

For the acts of the European Union we have included:

  • The Parliamentary Resolution of 15 December 2011 on detention conditions in the European Union;
  • The Parliamentary Resolution of 15 December 2011 on freedom of movement for workers within the European Union;
  • The Parliamentary Resolution of 15 December 2011 on the mid-term review of the European strategy 2007-2012 on health and safety at work;
  • The Parliamentary Resolution of 14 December 2011 on the European Union Counter-Terrorism Policy;
  • The Parliamentary Resolution of 17 November 2011 on gender mainstreaming in the work of the European Parliament;
  • The Parliamentary Resolution of 15 November 2011 on a new strategy for consumer policy;
  • The Parliamentary Resolution of 15 November 2011 on the European Platform against poverty and socialexclusion;
  • The Report of the European Union AgencyforFundamental Rightsof 21 November 2011 on fundamental rights of migrants in an irregular situation in the European Union;
  • The Parliamentary Resolution of 25 October 2011 on promoting workers’ mobility within the European Union;
  • The Study ordered by the European Parliament in September 2011 on the protection of data and privacy.

For the Court of Justice, we have addedthe decisions:

  • 21 December 2011, joined cases C-411/10 and C-493/10, N.S. and M.E., on the impossibility of a transfer of asylum seekers to the Member State responsible for examining the asylum application in case of risk of inhuman and degrading treatments, which was decided by the Court by recalling articles 1, 4, 18, 47, 51 of the Charter of Fundamental Rights;
  • 21 December 2011, case C-507/10, Criminal proceeding against X, on the hearing of minors as witnesses through a pre-trial evidence gathering procedure (the so called incidente probatorio);
  • 21 December 2011, joined cases C-424/10 and C-425/10, Tomasz Ziolkowski and Barbara Szeja and others, on freedom of movement for persons and the right of permanent residence;
  • 21 December 2011, case C-495/10, Centre hospitalier universitaire de Besançon, on the right to compensation by public healthcare establishments;
  • 21 December 2011, case C-27/09 P, French Republic vs People’s Mojahedin Organization of Iran, on the appeal against the first instance decision in the matter of freezing of funds of a group included in a black list;
  • 15 December 2011, case C-119/10, Frisdranken Industrie Winters BV, on the provision of services and protection of the trade mark;
  • 15 December 2011, case C-384/10, Jan Voogsgeerd, on the meaning to be ascribed to the term ‘place of business’;
  • 15 December 2011, case C-257/2010, Försäkrinskassan, on migrant workers and social security;
  • 6 December 2011, case C-329/11, Alexandre Achghbabian, on national procedures for returning illegally staying third-country nationals, which provides for a sentence of imprisonment and a fine;
  • 1° December 2011, case C-145/10, Eva-Maria Painer, on the protection of the portrait photography and copyright;
  • 24 November 2011, joined cases C-468/10 and C-469/10, Asociación Nacional de Establecimientos Financieros de Crédito and Federación de Comercio Electrónico, on the processing of personal data and the direct effect of art. 7 letter f of Directive 95/46/EC;
  • 24 November 2011, case C-379/10, European Commission vsItaly, on the responsibility of the MemberState for violation of the EU legislation by a judicial body;
  • 24 November 2011, case C-70/10, Scarlet Extended SA, on copyright and Internet;
  • 24 November 2011, case C-283/10, Circul Globus Bucureşti, on copyright and the concept of ‘communication of a work to a public present at the place where the communication originates’;
  • 24 November 2011, case C-322/10, Medeva BV, andcase C-422/10, George Town University and others, both on medicinal products for human use and the concept of a ‘product protected by a basic patent in force’;
  • 22 November 2011, case C-214/10, KHS AG vs Wingried Schulte, on the right to paid annual leave;
  • 17 November 2011, C-327/10, Hypoteční bancka a.s., on jurisdiction and the enforcement of judgments in civil and commercial matters in case of a legal action against a consumer whose precise domicile is unknown;
  • 17 November 2011, C-430/10, Hristo Gaydarov, on the limitations to freedom of movement for a EU citizen due to a criminal conviction in another MemberState;
  • 17 November 2011, case C-434/10, Petar Alazhov, on the limitations to freedom of movement for a EU citizen because of a non-payment of a tax liability;
  • 17 November 2011, case C-435/10, J.C. van Ardennen, on the protection of employees in the event of the insolvency of their employer;
  • 15 November , case C-256/11, Murat Dereci and others, on the right of residence of nationals of third countries who are family members of Union citizens and on the right to freedom of movement;
  • 10 November 2011, case C-405/10, Özlem Garenfeld, on the shipment of waste and protection of the environment;
  • 27 October 2011, case C-255/09, European Commission vsPortugal, on the reimbursement of medical expenses incurred in another MemberState;

For the General Court the decisions:

  • 23 November 2011,case T-341/07, Jose Maria Sison, on compensation following the annulment by a judgment of the General Court of a funds freezing measure;

and the Opinions of the Advocate General:

  • 13 December 2011, C-571/10, Servet Kamberaj, on equal treatment independently from race and on welfare.

For the European Court of Human Rights we would like to highlight the decisions:

  • 15.12.2011, Al-Khawaja and Tahery vs the United Kingdom(n.26766/05 and 22228/06) on the use of a hearsay evidence in a criminal proceeding;
  • 15.12.2011, Mor vsFrance (n. 28198/09) on the conviction of a lawyer for breach of professional confidence following a media interview, which infringed her right to freedom of expression;
  • 15.12.2011 Poirot vsFrance (n. 29938/07) on the excessive procedural formalism of French courts in depriving a disabled woman of her right to appeal;
  • 13.12.2011, Ajdarić vsCroatia (n. 20883/09), on the fairness of the criminal proceeding and in particular on the reasoning of a sentence to 40 years’ imprisonment, which was deemed insufficient;
  • 13.12.2011, Kanagaratnam and others vsBelgium (n. 15297/09), on the unlawful detention of a mother and her children;
  • 13.12.2011, X vsLatvia (n. 27853/09) on theproceedings before the Latvian courts related to a child abduction, which were deemed in breach of the Convention;
  • 8.12.2011, Althoff and others vsGermany(n. 5631/05) on dispossession of goods in East Germany: the retroactive amendment of restitution law violates the heirs' property rights;
  • 8.12.2011, Göbelvs Germany(n. 35023/04) on the restitution of property to heirs of original owners forced to sell under Nazi regime, which – according to the Court – has not violated thepurchaser's rights;
  • 6.12.2011, Taraburca vsMoldova(n. 18919/10) on the behaviour of the police against a 21-year old demonstrator and many others during protests about the alleged electoral fraud;
  • 6.12.2011 De Donder and De Clippel vsBelgium(n. 8595/06) on the suicide in prison by a mentally disturbed young man, who was placed in the ordinary section of the prison;
  • 1.12.2011 Schwabe and M. G. vsGermany(n. 8080/08 e 8577/08) on thefive-day detention to prevent young men's participation in G8 summit demonstrations, which was deemed not justified;
  • 29.11.2011, Beiere vsLatvia(n. 30954/05) on the placing a woman in a psychiatric hospital without a lawful court order;
  • 29.11.2011, Altinok vsTurkey(n. 31610/08) on the systemic lack of a remedy in order to contest continued detention and claim for compensation;
  • 29.11.2011 A. and others vsBulgaria(n. 51776/08) on the placement of a minor in secure institutions;
  • 24.11.2011, Schönbrod vsGermany (n. 48038/06) on preventive detention without a court ordering;
  • 24.11.2011, O.H. vsGermany (n. 4646/08) on preventive detention regime in Germany;
  • 24.11.2011 Giszczak vsPoland(n. 40195/08) on the conditions of the permission given by thePolish authorities to a prisoner to visit his dying daughter in hospital and to attend her funeral, which were deemed not adequate;
  • 22.11.2011, John Anthony Mizzi vsMalta (n. 17320/10) on freedom of expression and the conviction of a journalist for slander;
  • 22.11.2011, Koprivica vsMontenegro(n. 41158/09) on freedom of expression;
  • 22.11.2011 Makharadze and Sikharulidze vs Georgia(n. 35254/07) on the right to life and the lack of protection of such right in the case of a prisoner affected by tuberculosis;
  • 22.11.2011 Erçep vs Turkey (n. 43965/04) on the absence in Turkey of an alternative to military service, which is deemed to be in breach of the right to conscientious objection;
  • 15.11.2011Sivova and Koleva vsBulgaria (n. 30383/03) on the process of recovery of collectivised land (terres collectivisées): the Court has stated that there was an imbalance between public interest and the right to enjoyment of possessions;
  • 10.11.2011, Mallah vsFrance (n. 29681/08), according to which the conviction of the claimant for facilitating unauthorised residence of his son in-lawwas not in breach of art. 8 of the ECHR (right to the respect for private and family life);
  • 10.11.2011 Plathey vs France (n. 48337/09) on the disciplinary measure suffered by the prisoner, the lack of an internal remedy against the decision and its application and on the conditions of the detention in the disciplinary cell, which were deemed degrading;
  • 8.11.2011 V.C. vsSlovakia(n. 18968/07) on the sterilisation of a 20-year old Roma woman in a public hospital without her informed consent;
  • 8.11.2011 V.D. vsCroatia(n. 15526/10) on the alleged ill-treatment by the police suffered by a man affected by schizophrenia;
  • 3.11.2011 Cocaign vsFrance(n. 32010/07) on the placement of a prisoner with mental disorders in a punishment block;
  • 3.11.2011, X and Y vsCroatia, n.5193/09, with which the Court has stated that the proceedings adopted to revoke the legal capacity of the two claimants were in breach of articles 6§1 (right to a fair trial) and 8 (right to private and family life) of the Convention;
  • 3.11.2011, KuşçuoğluvsTurkey, n. 12358/06, which deems in breach of art.8 (right to private and family life) of the Convention the fact that the State failed to promptly reunite the mother with her son, abducted four times by the father: the case concerned the custody of a son who was abducted several times by his father;
  • 3.11.2011, S.H. and others vsAustria, n.57813/00, which deems not in breach of the Convention the prohibition of sperm and ova donation for in vitro fertilisation;
  • 27.10.2011, Bergmann vsCzech Republic, n.8857/08, on the respect for private and family life;
  • 25.10.2011, Akçam vsTurkey, n.27520/07, on freedom of expression, in the case of a professor charged for his opinions on the facts concerning the genocide of the Armenian population in 1915.

On 2 December 2011 the Court has published a check list on key issues concerning the inadmissibility of applications

Link:

For the extra-European area we have included:

  • The decision of the Trial Chamber IIof the International Criminal Tribunal for Rwanda of 30.09.2011, case “Government II”, which has sentenced Justin Mugenzi, former minister of commerce, and Prosper Muginareza, former minister of public service, to 30 years’ imprisonment for the crimes of conspiracy to commit genocide and direct and publicincitement to commit genocide; theCourt hason the contrary acquitted Casimir Bizimungu, former minister of health, and Jérôme-Clément Bicamumpaka, former minister of foreign affairs, ordering their immediate release;
  • The decisions of the Appeals Chamber of theInternational Criminal Tribunal for Rwanda of 28.09.2011, casesEphrem Setako vs The Prosecutor andThe Prosecutor vs Yussuf Munyakazi, which has confirmed the sentences against the claimants in the first instance trial;
  • The decision of the Inter-American Court of Human Rights of 01.09.2011, caseLópez Mendoza vs Venezuela, which has sentenced the State for violation of the right to stand for elections, the right of defence and for the violation of the obligation to give reasons in administrative proceedingsand of the right to and effective judicial remedy, with regard to the administrative decision of judicial disqualification, preventing Leopoldo López Mendoza from the exercise of public services; the decision of 26.08.2011, caseTorres Millacura and others vs Argentina, which has sentenced the State forillegal detention, torture and forced disappearance of Iván Eladio Torres Millacura, also recalling the jurisprudence of the Court of Strasbourg.

As far as case law of national courts is concerned, the following decisions must be highlighted:

  • Belgium: the decision of theCour Constitutionnelleof 20.10.2011, in the matter of protection of health and safety of workers, which applies Community legislationand thejurisprudenceof the Court ofJustice; the decision of13.10.2011, which states the constitutional legitimacy of articles 67, 81 and 82 of the law of 3 July 1978, concerning the duty to give notice during the trial period, mentioning the European Union Charter of Fundamental Rights; the decision of 13.10.2011, which declares itself against the possibility to challenge a judge for having cumulated jurisdictional functions and university teaching, recalling the jurisprudence of the Court of Strasbourg; the decision of 22.09.2011, which judges on the compatibilityof the law of 4 February 2010,concerning methods of gathering of data for the information and security service, with constitutional norms and the ECHR, also applying the jurisprudence of the Court of Strasbourg;
  • Bosnia andHerzegovina: the decision of the Ustavni sud(Constitutional Court) of 27.05.2011, which rejects the claim based on the alleged violation of the right to a fair trial, according to theConstitution of the State and the ECHR, in relationto proceedings in the matter of industrial property (protection of the registered brand) and unfair competition;
  • Croatia: the decision of the Ustavni sud(Constitutional Court) of the 29.07.2011,which has declared the constitutional illegitimacy of the norms provided by article 1 paragraphs 2 and 3 of the Constitutional Act on Amendments to the Constitutional Act on the Rights of National Minorities, on the recognition of a certain number of the parliament polling stations reserved for members of national minorities, recalling the Council of Europe Framework Convention for the Protection of National Minorities and the jurisprudence of the Court of Strasbourg; the decision of 06.07.2011, which has deemed as constitutionally illegitimate the norms of article 1 paragraphs 3 and 4 of the Public Assembly (Amendments and Revisions) Act, which provide limits to the freedom to assembly in a public place, following an assessment in the light of the principles provided in such matter by the jurisprudence of the Court of Strasbourg; the decision of 30.06.2011, which judges on the alleged violationof the right to the presumption of innocence, recalling a consolidated jurisprudence of the Court of Strasbourg; the decision of 29.06.2011, which has stated the constitutional illegitimacy of article 4 paragraphs 7 and 8 of the Constitutional Act on Amendments to the Constitutional Act on the Rights of National Minorities, providing norms on the Councils of National Minorities, recalling jurisprudence of the Court of Strasbourg; the decision of 06.04.2011, which, also mentioning the jurisprudence of the Court of Strasbourg, states the partial constitutional illegitimacy of article 127 paragraph 1 of the Execution of Prison Sentences Act, for insufficient clarity and precision of the said norm, in the part in which it provides that a prisoner has the right to receive or send money to third persons only following an authorization from the prison director; moreover, the decision of 06.04.2011, which ascertains the contrast of some articles of the Free Legal Aid Act with the principle of legal certainty which, in the light of the jurisprudence of the Court of Strasbourg, limits the right to a fair trial; the decision of 30.03.2011, which, also recalling the jurisprudence of the Court of Strasbourg, has stated the constitutional illegitimacy of articles 15, 16, 25 paragraphs 1, 2 and 3, 81, 82, 83, 84 and 85 of the Agricultural Land Act, deeming that they disproportionally limited the right to property;
  • Estonia: the decision of theVabariigi Riigikohus(Supreme Court) of 22.03.2011, which, also recalling the norms of the ECHR and the jurisprudence of the Court of Strasbourg, hasquashed a decision of the Tallin Circuit Court, awardingcompensation for non patrimonial damagessuffered by the claimant following the unreasonable delay of the preliminary phase of the criminal proceeding;
  • Great Britain:the decisions of theUnited Kingdom Supreme Courtof 23.11.2011, both in the matter of right to a fair trial and of the right of defence, with regard to the absence of a lawyer during the interrogationsof two accused persons by the police; the decision of 26.10.11, in which the Court deems compatible with the principle of fair trial, when deciding whether certain goods derive from criminal activities and therefore must be confiscated, the application of the principle of the “reasonable probability”, despite the fact that criminal law is normally founded on the principle of “beyond any reasonable doubt”; the decision of 12.10.2011, in which the Court states the incompatibility with the right to family life of the policy of the Secretary of State for Home Department, aiming at fighting the phenomenon of forced marriages, which denied to foreign married women an entry visa, unless both spouseswere at least 21 years old; the decision of theEngland and Wales High Courtof 16.11.2011, in which the Court establishes that the patients’ medical recordsof a dentist who is subjected to an investigation can be consulted by the competent authority without need for the patients’ consent and that there is therefore no violation of their right to private life; the decision of 3.11.2011, on the right to private life, freedom of expression and association, following the body search of a demonstratorby the police; the decision of 24.10.2011, in the matter of freedom of information following anaction for libelagainst theTimes; the decision of theEngland and Wales Court of Appealof 22.11.2011, in whichthe Court states the violationof art. 3 of the ECHR, considering the lack of independence of the Iraq Historic Allegations Team, a commission created to investigate on cases of torture and inhuman treatments sufferedby some Iraqi prisoners by the British army; the decision of 9.11.11, on the right to freedom and equal treatment of a disabled patient, who had been subjected to forced treatments in a nursing home;the decision of 18.10.2011 on the relation between the obligations of the States provided by the Dublin II Regulation and those provided by the ECHR in the matter of asylum; the decision of theFirst-tierTribunalof 25.10.2011, in which the Courtdeems compatible with the norms of the ECHR in the matter of freedom of expression and thought and right to family life, the expulsion of a Palestinian national, who was known for organizing rallies in which he incited hate against Israel;
  • France:the decision of theCour de cassationof 26.10.2011which, in the matter of order of immediate return of a minor to another State, recalls the Hague Convention of 1980; the decision of 26.10.2011, in the matter of compensation for the denial of a preliminary referral and moreover the decision of 26.10.2011,which, in the matter of conflict of jurisdictions, applies the EU legislation; the decision of theConseil d’Etatof 26.10.2011 which, in the matter of information for the issue of the passport, recalls the ECHR and the EU Treaties;
  • Germany: the decision of theBundesverfassungsgericht (Federal Constitutional Court)of 19.07.2011 - 1 BvR 1916/09 – which extends the right to appeal to legalpersons with their premises in other EU Member States according to the European fundamental principles of freedom of movement (Art. 26 TFEU, n. 2) and non discrimination based on nationality(Art. 18 TFEU); the decision of the Verwaltungsgerichtshof Baden-Württemberg (Administrative Court of Appeal ofMannheim) of 9.8.2011 - 11 S 245/11 – which,in a case ofextradition of a Turkish national,establishes that the national judge must take into consideration,also in relation to the permit of stay,facts following the measure adopted by the competent authority which eliminate or diminish the threaten to public order deriving from the present conduct of the person, and it recalls the decisions of the Court of Justice in the cases Orfanopoulos and Oliveri (C-482/01 and C-493/01);
  • Ireland: the decision of