Osservatorio Sul Rispetto Dei Diritti Fondamentali in Europa

C.I.R.D.C.E.

OBSERVATORY ON FUNDAMENTAL RIGHTS IN EUROPE

Newsletter n. 29

15 November 2011

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 European Parliament Resolution of 28 September 2011 on human rights, sexual orientation and gender identity at the United Nations;
The European Parliament study of August 2011 on the implementation of European Union Charter of Fundamental Rights and the impact on the EU Agencies working in the National Affairs Area (Europol, Frontex, European Asylum Support Office).

For theCouncil of Europewe would like to highlight the following Resolutions and Recommendations of the Parliamentary Assembly:

The Resolution 1843 and the Recommendation1984 of 7.10.2011, on “the protection of privacy and personal data on the internet and online media”;
the Recommendation1985 of 7.10.2011, on “undocumented migrant children in an irregular situation: a real cause for concern”;
The Resolution 1838 andthe Recommendation1983 of 6.10.2011, on “abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations”;
The Resolution 1840 of 6.10.2011, on “human rights and the fight against terrorism”;
The Resolution 1836 andthe Recommendation1982 of 5.10.2011, on “the impact of the Lisbon Treaty on the Council of Europe”;
The Resolution 1832 of 4.10.2011 on “national sovereignty and statehood in contemporary international law: the need for clarification”;
The Resolution 1829 andthe Recommendation1979 of 3.10.2011, on “prenatal sex selection”.

For the Court of Justice, we have addedthe decisions:

25 October 2011, joined cases C-509/09 and C-161/10, eDate Advertising, on the courts that have jurisdiction in the event of an alleged infringement of personality rights by means of content placed online on an internet website;
20 October 2011, case C-123/10, Brachner, on the discrimination between male pensioners and female pensioners;
20 Octobre 2011, case C-396/09,Interedil, which stated that European Union law precludes a national court from being bound by a national procedural rule under which that court is bound by the rulings of a higher national court, where it is apparent that the rulings of the higher court are at variance with European Union law, as interpreted by the Court of Justice;
20 Octobre 2011, case C-225/10, Perez Garcia and others,on social security for employed persons moving within the European Union;
18 Octobre 2011, joined cases from C-128/09 to C-131/09 and from C-134/09 to C-135/09, Boxus, Roua, on environmental protection and access to justice;

18 October 2011, case C-34/10, Olivier Brüstle, on the interpretation of the concept of human embryo and the exclusion of patentability for industrial or commercial purposes;
4 October 2011, joined cases C-403/08 and C-429/08, Football Association Premier League and others, on the broadcasting of football matches, freedom to provide services and copyright;
22 September 2011, caseC-323/09, Interflora, on the protection of trademarks;
15 September 2011, joined cases C-483/09 and C-1/10, Gueye and Salmerón Sánchez, on domestic crimes and the interest of the victim;
15 September 2011, case C-347/09, Criminal judgment against Jochen Dickinger and Franz Ömer, on the monopoly of games of chance and freedom to provide services;
15 September 2011, caseC-155/10, Williams and others, on the maintenance of the salary during the annual leave;
8 September 2011, joined cases from C-58/10 to C-68/2010, Monsanto SAS and others, on the cultivation of GMO maize and the protection of health and of the environment;
8 September 2011, caseC-177/10, Francisco Javier Rosado Santana, on the prohibition of any difference in treatment between career civil servants and comparable interim civil servants of a Member State, unless different treatment is justified on objective grounds, with regard to the recognition of worked periods in order to obtain an internal promotion;

For the General Court the decisions:

12 October 2011, caseT-224/10, Association belge des consommateurs test-achats ASBL, on the right of consumers’ associations to be heard in aEuropean Commission administrative proceeding concerning the examination of a concentration between undertakings;
20 September 2011, caseT-232/10, Couture Tech Ltd, on the prohibition of registration of the Soviet coat of arms as Community trademark, even if it is contrary to public policy and principles of morality only in one MemberState;

and the Opinions of the AdvocateGeneral:

22 September 2011, C-411/10, N.S. vs Secretary of State, on the prohibition to transfer asylum seekers to other Member States when there’s a risk of violation of the rights provided by the EU Charter of Fundamental Rights;
14 September 2011, joined cases C-424/10, Ziolkowski, and C-425/10, Szeja and others, on the acquisition of the right to permanent residence;
8 September 2011, C-282/10, Maribel Dominguez,on the right to paid annual leave.

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

20.10.2011 Nejdet Şahin and Perihan Şahin vsTurkey, n. 13279/05, according to whichdiscrepancy in case-law between two supreme courts of the same state does not breach the Convention;
20.10.2011, Mandić and Jović vsSlovenia, n. 5774/10 and 5985/10 andŠtrucl and others vsSlovenia, n. 5903/10, 6003/10 and 6544/10, on thedetention conditions in Ljubljana Prison, deemed inhuman and degrading;
20.11.2011 Alboreo vsFrance, n. 51019/08, on inhuman and degrading treatments suffered by a prisoner;
19.10.2011 in the casesOrganisation macédonienne unie Ilinden and othersvs Bulgaria, n. 34960/04, Singartiyski and others vs Bulgaria, n. 48284/07, Organisation macédonienne unie Ilinden and Ivanov vs Bulgaria, n. 37586/04 andOrganisation macédonienne unie Ilinden – PIRIN and others vs Bulgaria, n. 41561/07 and 20972/08, in which the Court sentences the Bulgarian authorities for the refusal to register an association and to allow peaceful rallies by supporters, because deemed in breach of the Convention;
18.10.2011 Khelili vsSwitzerland, n. 16188/07, on the violationof the respect for private life: the claimant, aFrench national, was classified as a "prostitute" for five years in Geneva police database;
18.10.2011, Stanimirović vsSerbia, n. 26088/06, on the allegations of torture by a detainee and the absence of an effective investigation into his complaints;
18.10.2011, Lyubenova vsBulgaria, n. 13786/04, according to which the Bulgarian authorities failed to comply with their obligation to protect the family life of a separated mother and her son;
13.10.2011 Trabelsi vsGermany, n. 41548/06, on the deportation of the claimant, a Tunisian national, following a series of criminal convictions, which was deemed not in breach of the Convention;
11.10.2011, Auad vs Bulgaria, n. 46390/10, in which the Court has stated that, considering the risk of removal of aliens to Countries where they could suffer inhuman or degrading treatments, it is necessary to change Bulgarian law and practice in such matters;
11.10.2011, Gorobet vsMoldavia, n. 30951/10, on the forced confinement of a Moldovan man in a psychiatric hospital, which was deemed an unlawful act and amounted to degrading treatment;
11.10.2011, Emre vs Switzerland, n. 5056/10, on the ten-year ban on re-entering Switzerland, which was deemed in breach of the Convention;
11.10.2011, Genovese vs Malta, n. 53124/09, on the Maltese courts' refusal to grant citizenship to a boy born out of wedlock to Maltese father and British mother, which was deemed discriminatory;
11.10.2011,Association Rhino and others vsSwitzerland, n. 48848/07, according to which the dissolution of a squatters' association was disproportionate;
6.10.2011, Agrokompleks vsUkraine, n. 23465/03, on the lack of independence of the court;
6.10.2011, Soros vsFrance, n. 50425/06, on fair trial;
6.10.2011 Vellutini and Michel vsFrance, n. 32820/09, on freedom of expression;
4.10.2011, S. vsEstonia, n. 17779/08, according to which the involuntary internment of the applicant in a psychiatric hospital and the time needed to hear her was deemed excessively long;
4.10.2011,Güler and Öngel vs Turkey, n. 29612/05 and 30668/05, according to which the Turkish police used excessive force against demonstrators protesting about NATO summit;
27.09.2011 A. Menarini Diagnostics S.R.L. vsItaly, n. 43509/08, on fair trial;
27.09.2011 Beksultanova vsRussia, n. 31564/07, on the disappearance of a person in Chechnya;
27.09.2011, Şişman and others vsTurkey, n. 1305/05, on the violation of the right to association and to an effective remedy;
27.09.2011, M. and C. vs Romania, n. 29032/04, on the failure of the Romanian authorities to ensure adequate protection of a three years old child from alleged sexual abuse by his father;
27.09.2011, Archip vsRomania, n. 49608/08,according to which handcuffing a man with hip arthritis to a tree in the police station courtyard was excessive;
22.09.2011,H.R. vs France, n. 64780/09, according to which the removal to Algeria still entails a risk of inhuman or degrading treatments by the Algerian authorities;
20.09.2011,Omeredo vsAustria, n. 8969/10, application deemed inadmissible; the case concerns the risk of genital mutilation in Nigeria;
20.09.2011 Shesti Mai Engineering OOD and others vs Bulgaria, n. 17854/04 on the right to property and the lack of adequate measures to protect shareholders after the new management took fraudulent control of the undertaking’s premises;
20.09.2011, Oao Neftyanaya Kompaniya Yukos vsRussia, n. 14902/04 on the violations of the fundamental rights of Oao Neftyanaya Kompaniya Yukos in the proceedings adopted against it;
20.09.2011, Ullens de Schooten and Rezabek vs Belgium, n. 3989/07 and 38353/07, according to which the Highest Belgian courts’ refusal to refer questions to the Court of Justice was not in breach of the Convention;
5.09.2011, Schneider vsGermany, n. 17080/07, according to whichGerman courts did not take into due consideration the child’s best interest when deciding about access rights of the presumed biological father;
13.09.2011, decisionHamidovic vsItaly, n. 31956/05, on the expulsion of the applicant to Bosnia Herzegovina despite the suspension of such measure according to art. 39 of the ECHR Regulationand her strong ties with Italy;
12.09.2011, decision of the Grand ChamberPalomo Sánchez and others vsSpain, n. 28955/06, 28957/06, 28959/06, on freedom of expression;
8.09.2011, Oshurko vs Ukraine, n. 33108/05, on the lack of adequate and timely medical care during the detention, the lack of an effective investigation by the authorities and the delay in the releasing of the applicant;

We would like to recall that the Court on 18.10.2011 has published online some thematicfichesdivided by subject and countries

Moreover we highlight the decision of the EFTA (European Free Trade Association)of 28.6.2011 in the matter of rights of workers posted elsewhere, which recalls the decisions of the Court of Justice in the Viking and Laval cases.

For the extra-European area we have included:

The decision of the Trial Chamber Iof the International Criminal Tribunal for former Yugoslavia of 06.09.2011, case Prosecutor vsMomčilo Perišić, which has sentenced Momčilo Perišić, formerChief of the General Staff of the Yugoslavian Army, to 27 years imprisonment for crimes against humanity and war crimes perpetrated in Croatia and Bosnia andHerzegovina;
The decision of the High Court of Australia of 31.08.2011, which has deemed illegal the bilateral agreement of 7 May 2011,subscribed by Australia andMalaysia, in the matter of immigration, which provided the transfer of 800 irregular immigrantsfrom Australia toMalaysiain order to examine the claims for asylum in exchange for the reception on the Australian territory (over a period of 4 years) of 4000 immigrants already recognized as refugees:according to the Court, theMalaysianlegal system does not offer adequate guarantees for the protection of refugees and claimants for asylum from the risk of persecution and refoulement;
The decision of the Inter-American Court of Human Rights of 05.07.2011, caseMejía Idrovo vs Ecuador, which has sentenced the State for violation of the right to an effective remedy, also recalling the jurisprudence of the Court of Strasbourg; and the decision of 01.07.2011, caseChocrón Chocrón vs Venezuela, which has sentenced the State with regard to the arbitraryremoval of MrsMercedes Chocrón Chocrón fromher role of first instance judge, stating the violation of the guarantees of a fair trial;
The decision of the Trial Chamber II of the International Criminal Tribunal for Rwandaof 24.06.2011, case The Prosecutor vsPauline Nyiramasuhukoand others, which has sentenced all six accused, and among them Pauline Nyiramasuhuko, former Minister of Family and Women Development, as well as first woman to be convicted of genocide by the Tribunal for the massacres perpetrated in the province of Butare;
The decision of the Supreme Court of Arkansas of 07.04.2011, which has stated the constitutional illegitimacy of the Arkansas Adoption and Foster Care Act of 2008or“Act 1” for the violation of the right to privacy. Such law provided that couples, both heterosexual and homosexual,wholive together without being married,could not adopt or have in custody a minor of age.

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

Belgium: the decision of theCour Constitutionnelleof 27.07.2011, which has rejected the claim lodged against some articles of the laws of 12 January 2007 and 30 December 2009, providing norms in the matter ofmaterial aid (aide matérielle) given to claimants for asylum and other categories of foreigners, also recalling the ECHR and the European Social Charter; the decision of 07.07.2011, which declares the constitutional illegitimacy of some articles of the law of 3 July 1978, in the matter ofwork contracts, applying the jurisprudence of the Court of Strasbourg; another decision of 07.07.2011, which has stated the contrast of article 24 of the law of 1 July 2006, concerning some aspects of paternity dispute, with the right to the respect for private life, according to the Constitution of the Stateand the ECHR; the decision of 30.06.2011, which admits the claim for the annulment of the law of 21 December 2007 which modified the law of 10 May 2007, aiming at fightinggender-baseddiscrimination with regard to insurance matters, in the light of the norms of Community Treaties, of the European Union Charter of Fundamental Rights, of the ECHR, as well as the jurisprudence of the Court of Justice;
Bosnia and Herzegovina: the decision of the Ustavni sud(Constitutional Court) of 21.01.2011, which partially admits the claim lodged against a decision of the Supreme Court with regard to a labour case for violation of the right to the reasonable delay of the proceeding, also recalling the jurisprudence of the Court of Strasbourg;

France: the decision of the Court of Cassation of 29September 2011, in whichthe Court, following a decision of the Court of Justiceon a preliminary referral, deems in contrast with art. 56 of the TFEU the French legislation, which imposes to non-French nationals different conditions for applying to the lists of judicial translators: the Court has therefore annulled the resolution of the general assembly of the judges of the Court of Appeal of Paris, which does not allow the claimant to take legal steps to verify if his qualifications, which are recognized in another Member State, have been taken into account;the decisions of the Cour de cassation,both of 3.6.2011, which have stated the violation of the ECHR in the case of social servicesrespectively requested by a Congolese and a Moroccan citizens, which were rejected for the lack of the requested medical documentation; the decision of 29.6.2011 on the right to health in metallurgical undertakings, which recall the EU Treatiesand art. 31 of the Charter of Fundamental Rights;
Germany: the decision of theBundesverfassungsgericht(German Constitutional Court) of 7.9.2011, which has stated the legitimacy of interventions aimed at saving the Euro, asking however a stronger parliamentary control for the future; the decision of the Bundesverwaltungsgericht (Administrative Federal Court) of 01.06.2011 (BverwG10C10.10) which, in the matter of procedure for political asylum, recalls the Directive 2004/83/EC;
Great Britain:the decision of theEngland and Wales High Court of 30.09.2011, in which the Court declares that the detention of a Palestinian activist was in breach of art. 5 of the ECHR, because the reasons had not been explained to him in a languagehe could understand; the decision of 29.09.2011, in which the Court deems legitimate the violation of the right to private life in favour of the freedom of information, in the case concerning a well known football player, who wasdiscreditedby the interview of a former lover; the decision of 28.09.2011, in which, even though in the specific case there had not been an effective protection of the interest of the patient, the Court states that the interruption of the artificial administration of food does not violate articles 2, 3, 8 of the ECHR; the decision of 1.09.2011, on the balance between the freedom of information and the respect for private lifefollowing the online publication by a private investigator ofchargesfor sexual abuses on minors, which had already been deemed not grounded by the judges; the decision of 5.08.2011, in which the Court states that the detention of a foreigner, affected by mental disorder and waiting for expulsion, is in breach of articles 3 and 5 of the ECHR; the decision of the England and Wales Court of Appeal of 07.09.2011, in which the Court established that art. 8 of the ECHR must not be mandatorily consideredin order to decide on the claim to stay in England permanently, lodged by a foreigner;

Ireland: the decision of theSupreme Courtof 28.07.2011, which admits the claim lodged to obtain the annulment of a decision issued in default of defence, recalling the norms of the ECHR; the decision of the High Courtof 22.07.2011, on the alleged violation of the claimant’s rightsprovided by the European Union Charter of Fundamental Rights, in the light of the authorities’ refusal to admit the claim for naturalization, considered as limitfor the obtainment of the European citizenship; the decision of 15.07.2011, which rejects the defendant’s thesis, according to which the norms of the Framework Decision on the European arrest warrant combined with article 47 of the European Union Charter of Fundamental Rights, as for the right to legal assistance is concerned, can amount to a limit to the execution of the said warrant; the decision of 06.07.2011, in the matter of European arrest warrant, which recalls the norms of the ECHR; and the decision of 30.06.2011, which admits the claimants’ claim for the review of the decision of the Minister of Justice concerning the possibility to reside in the territory of the State, according to article 41 of the Constitution (Family), of articles 8 and 14 of the ECHR and the norms of Directive 2004/38/EC;
Italy: the decision of theConstitutional Courtn. 257/2011 of 19.9.2011 in the matter of temporary farm labourers’ salary, which can be calculated for retirement purposes, which examines the jurisprudence of the European Court of Human Rights on the limits to the retroactivity of civil law; the decision n. 245/2011 of 25.7.2011, which, on the right to marryof the clandestine immigrant, recalls the jurisprudence of the ECHR; the decision n. 236/2011 of 19.7.2011, which, in the matter of debarment andlex mitior, examines the guideline of the ECHR; the decision n.209/2011 of 13.7.2011, which, in the matter of environmental impact assessment, recalls the EU legislation and the jurisprudence of the Court of Justice; the decision of theCourt of Cassation n. 27918/2011 of 14.7.2011, which, in the matter of pre-trial statements of witnesses who are not going to be heard during the proceeding, recalls the jurisprudence of the Court of Strasbourg on the fair trial; the decision n. 27919/2011 of 15.7.2011, which in the matter of lex mitiorrecalls the jurisprudence of the Court of Human Rights; the decision n. 17966/2011 of 1.9.2011, according to which all Moroccan nationals legally residing on the territory have the right to inability pension, in the light of the direct applicability of the Euro-Mediterranean Association Agreement between the European Union and the Kingdom