Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Foreword to the 2015 edition
I welcome the decision to publish annually, as a separate publication in its own right, the Overview of the Court’s principal judgments and decisions. While the Overview also appears in the Court’s Annual Reports, a dedicated publication is in line with the prominence which has been given to the continuing need to reinforce efforts to disseminate the key case-law of the Court. The Court has been particularly active in this field over the years, as attested by the constant attention it gives to the development of the HUDOC database and the important work it has carried out in publishing the Case-law Information Notes, the Practical Guide on Admissibility Criteria, and the series of case-law guides and thematic Factsheets.
It is essential that the case-law of the Court is known and applied at the domestic level. I would recall that, following the High-level Conference on the “Implementation of the European Convention on Human Rights, our shared responsibility”, the Brussels Declaration of 27 March 2015 stressed “the importance of further promoting knowledge of and compliance with the Convention within all the institutions of the States Parties, including the courts and parliaments, pursuant to the principle of subsidiarity”.
I believe that this new initiative will contribute to this endeavour. To be familiar with the Court’s jurisprudence is central to the proper application of the Convention at the domestic level. The publication is also timely, since it coincides with the development of the Superior Court Network, which is intended to create a practical and useful means of exchanging relevant information on Convention case-law and related matters.
The Overview is intended to focus on the most important cases which the Court has dealt with over the year in question. The cases are selected by the Jurisconsult’s Directorate on the basis of their jurisprudential interest. They may raise issues of general interest, establish new principles or develop or clarify the case-law. The Overview will obviously refer to those judgments and decisions which are published in the Court’s official Reports of Judgments and Decisions series. The approach is to draw attention to the salient points of the cases, allowing the reader to appreciate the jurisprudential significance of a particular case.
Finally, I would like to thank Wolf Legal Publishers for making this publication possible. Both the 2014 and 2015 editions are being published at the same time. I look forward to the Overview establishing itself as an essential source of information on the Court’s case-law, for the benefit of everyone involved in human rights protection.
Guido Raimondi
President of the European Court of Human Rights
Strasbourg, February 2016
Introduction
There were significant developments to the case-law in 20161. The Grand Chamber delivered twenty-seven judgments. It examined the concept of “jurisdiction” within the meaning of Article 1 of the Convention (Mozer) and, under Article 2, clarified the extent of the procedural obligation to carry out an investigation into the use of lethal force by State agents (Armani Da Silva). Several judgments dealt with immigration cases. In two of these, the Grand Chamber elucidated the State’s procedural obligations under Articles 2 and 3 when examining asylum requests (F.G. v. Sweden) and the distribution of the burden of proving a “real risk” of treatment proscribed by Article 3 in the event of expulsion (J.K. and Others v. Sweden). The Paposhvili judgment made an important contribution to the case-law governing the compatibility of the deportation of a seriously ill foreigner with Articles 3 and 8 of the Convention. The Khlaifia and Others judgment was delivered against the backdrop of a major migration and humanitarian crisis. It examines the rights of migrants in this context under Articles 3, 5 and 13 of the Convention and under Article 4 of Protocol No. 4.
The Grand Chamber set down specific standards for the protection of the health of juvenile detainees under Article 3 (Blokhin), and established the principles and standards regarding minimum personal space per detainee in multi-occupancy cells (Muršić). It further refined its case-law on irreducible life sentences (Murray).
Under Article 5 § 1, the Grand Chamber examined the lawfulness of orders made by the courts of an unrecognised entity (Mozer), and the placement of a minor below the age of criminal responsibility in a juvenile detention centre (Blokhin). It developed the case-law under Article 5 § 3 with a view to reinforcing the protection against unreasonably long periods of pre-trial detention (Buzadji).
With respect to Article 6 § 1, it confirmed that the Vilho Eskelinen criteria apply to disputes concerning judges and emphasised the growing importance of procedural fairness in cases involving the removal of judges (Baka). A number of cases concerned the proportionality of restrictions imposed on the right of access to a court (Al-Dulimi and Montana Management Inc., Baka and Lupeni Greek Catholic Parish and Others). The Grand Chamber examined issues relating to legal certainty and the right to a hearing within a reasonable time in the case of Lupeni Greek Catholic Parish and Others; the recognition and enforcement of foreign judgments in civil cases in Avotiņš; and, in Lhermitte, the reasons given by an assize-court jury for convicting a defendant. The Blokhin judgment comprehensively addressed, and in some respects developed, the procedural rights of juveniles under Article 6. As regards the right of access to a lawyer during police questioning, the Grand Chamber clarified the two stages of the Salduz test and the relationship between them in the Ibrahim and Others judgment, which concerned measures taken by the police in response to a terrorist attack. The judgment in A and B v. Norway developed the Court’s case-law on the interpretation of Article 4 of Protocol No. 7 (ne bis in idem).
In the case of Dubská and Krejzová the Grand Chamber considered the question of home births under Article 8, and in İzzettin Doğan and Others the State’s obligation of impartiality and neutrality regarding religious beliefs under Articles 9 and 14. For the first time, the Court examined the extent to which a parliament is entitled to regulate autonomously its own internal affairs and, in particular, to restrict the expression rights of members of parliament in session (Karácsony and Others). It emphasised the importance of the independence and irremovability of judges in a case concerning the freedom of expression of judges (Baka). The Grand Chamber developed its case-law regarding publication by the press of information protected by the secrecy of criminal investigations (Bédat), and clarified the extent to which Article 10 guarantees a right of access to State-held information (Magyar Helsinki Bizottság).
In another case, it found that a domestic immigration measure, regulating family reunification, had an indirect discriminatory impact (Biao). It examined the impact of a reform of a disability pension scheme on rights protected by Article 1 of Protocol No. 1 and provided further guidance on the scope of that provision (Béláné Nagy).
Another issue examined by the Grand Chamber was the respondent State’s continuing obligation to investigate even after an application has been struck out (Jeronovičs). The Grand Chamber considered whether or not to strike out the application in three expulsion cases (F.G. v. Sweden, Khan and Paposhvili). It struck out an application because the representative in the Grand Chamber proceedings no longer had any contact with the applicants (V.M. and Others).
For the first time the Court examined the obligation for prisoners to perform work in prison after reaching retirement age (Meier). Also for the first time the Court addressed the implications for the presumption of innocence of the parallel conduct of an official inquiry and criminal proceedings dealing with the same matters (Rywin). It applied the Schatschaschwili principles in a case concerning the admission and use of the incriminating conclusions of an absent expert (Constantinides) and considered a case involving the imminent execution of a demolition order (Ivanova and Cherkezov). It was also the first time that the Court examined the compatibility of house arrest with the exercise of the right to manifest one’s religion in community with others (Süveges). Among other novel issues before the Court were the confinement of an accused in a glass cabin during his trial (Yaroslav Belousov), and the revocation of an applicant’s acquired citizenship (Ramadan).
The Court was critical of the delayed enforcement of a prison sentence imposed on an accused who had been found guilty of a serious assault (Kitanovska Stanojkovic and Others), of a failure by the criminal-justice system to respond adequately to incidents of racism (Sakir and R.B. v. Hungary), and of a lack of appropriate medical care for a young child staying with her mother in prison (Korneykova and Korneykov).
Other important cases concerned the right of lawyers to exercise their professional duties without being subjected to ill-treatment (Cazan), the rights of minors who have been deprived of their liberty (Blokhin, A.B. and Others v. France and D.L. v. Bulgaria), the procedural rights of persons suffering from psychiatric disorders (Marc Brauer), the protection of personality rights (Kahn), the right to protect one’s reputation (Sousa Goucha) and to be heard (Pinto Coelho), prisoners’ rights (Mozer, Muršić, Meier, Biržietis, Shahanov and Palfreeman and Kalda), including the right to medical treatment (Blokhin, Murray, Cătălin Eugen Micu, and Wenner), and the rights of asylum-seekers (F.G. v. Sweden, J.K. and Others v. Sweden, Khlaifia and Others and B.A.C. v. Greece), of the disabled (Kocherov and Sergeyeva, Guberina and Çam) and of homosexual couples (Pajić, Aldeguer Tomás and Taddeucci and McCall).
The Court also considered cases concerning a search of the applicants’ home (K.S. and M.S. v. Germany), the right to demonstrate (Novikova and Others, Frumkin and Gülcü), the use of satire in the press (Ziembiński) and unlawful conduct by journalists (Brambilla and Others), the rights of political parties (Cumhuriyet Halk Partisi, Partei Die Friesen and Paunović and Milivojević), freedom of association (Geotech Kancev GmbH), trade-union rights (Unite the Union) and welfare benefits and pensions (Béláné Nagy, Di Trizio and Philippou).
Also of jurisprudential interest were cases on international arbitration (Tabbane), expert medical evidence (Vasileva), an insured person’s surveillance by her insurers (Vukota-Bojić) and conscientious objection to military service (Papavasilakis).
There were developments too in the case-law on Article 5 § 4 (A.M. v. France), Article 7 (Bergmann, Dallas and Ruban), on the applicability of Article 10 (Semir Güzel), Article 13 (Mozer and Kiril Zlatkov Nikolov) and Article 18 (Navalnyy and Ofitserov and Rasul Jafarov).
The Court explored the interaction between the Convention and European Union law. In particular, the Grand Chamber developed the case-law concerning the presumption of equivalent protection of fundamental rights in the European Union (Avotiņš), relying on the case-law of the Luxembourg Court. References were made to the EU Charter of Fundamental Rights (Karácsony and Others and Magyar Helsinki Bizottság) and to EU law on the mutual recognition of judicial decisions (Avotiņš), on procedural rights in criminal proceedings (Ibrahim and Others), on asylum proceedings (J.K. and Others v. Sweden) and on family reunification (Biao). The Court also examined a case involving the alleged defamatory content of a television programme broadcast from another European country (Arlewin).
In a similar vein, the Court analysed the interaction between the Convention and international law, interpreting the obligations arising out of the Charter of the United Nations in the light of the Convention obligations (Al-Dulimi and Montana Management Inc.). It used international-law and Council of Europe norms as an aid for applying and interpreting the Convention (in, for example, Mozer, Blokhin, Biao, Baka, J.K. and Others v. Sweden, and Magyar Helsinki Bizottság) and referred to decisions of international courts (in, for example, Baka, Ibrahim and Others, and Magyar Helsinki Bizottság).
Lastly, the Court further developed its case-law on the width of the States’ margin of appreciation (in, among others, Armani Da Silva, Karácsony and Others and Dubská and Krejzová), and on the extent of their positive obligations under the Convention (in, for example, Mozer and Murray).
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1. The Overview has been drafted by the Directorate of the Jurisconsult. It is not binding on the Court.
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