Last Updated on September 22, 2021 by LawEuro
Overview of the Case-law of the ECHR 2018
Prohibition of discrimination (Article 14)
Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1
The judgment in Molla Sali v. Greece[146] concerned the application of Sharia law and discrimination by association.
The applicant’s husband was a member of the Muslim community in Thrace. On his death the applicant inherited all of his property under a notarised will drawn up in accordance with the Civil Code. A first-instance court approved the will, the applicant accepted the estate and registered the property transferred to her. The deceased’s two sisters challenged the will and were unsuccessful before the courts of first and second instance. The Court of Cassation then found that, pursuant to the 1913 Treaty of Athens, matters of inheritance among the Muslim minority were to be settled according to Sharia law, according to which notarised wills drawn up by Greek nationals of Muslim faith were devoid of legal effect (Sharia law only recognises intestate succession and Islamic wills). As a result, the applicant lost three-quarters of the property her husband had bequeathed to her. She relied on Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.
The Grand Chamber examined her complaints under Article 14 taken in conjunction with Article 1 of Protocol No. 1, the focus of the case being the refusal to apply the Civil Code given the Muslim faith of the testator. The Grand Chamber found a violation of these provisions. In January 2018 the regulations imposing recourse to Sharia law for the settlement of family-law cases within the Muslim minority were abolished, a development which did not apply to the present applicant’s situation.
This was the first time the Court had examined the application, contrary to the applicant’s wishes, by a domestic court of Sharia law. It did so through the prism of Article 14, focusing on the difference in treatment between beneficiaries of a will drawn up under the Civil Code by a Muslim testator, on the one hand, and, on the other, by a non-Muslim testator. While the Court accepted that Greece might have wished to honour its international obligations and the situation of the Thrace minority, the reasons for the impugned difference in treatment, derived notably from international obligations, were not considered persuasive. The Court concluded that there was no objective and reasonable justification for the impugned difference in treatment.
A number of points are worth noting.
(i) This was also the first application by the Grand Chamber of the principle of discrimination by association. Since the focus of the case was a difference in treatment due to the Muslim faith of the testator (as opposed to the applicant), the Grand Chamber confirmed as follows.
“134. … In this context, the Court reiterates that the words ‘other status’ have generally been given a wide meaning in its case-law … and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent … For example, a discrimination issue arose in cases where the applicants’ status, which served as the alleged basis for discriminatory treatment, was determined in relation to their family situation, such as their children’s place of residence (see Efe v. Austria, no. 9134/06, § 48, 8 January 2013). It thus follows, in the light of its objective and nature of the rights which it seeks to safeguard, that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics (see Guberina v. Croatia, no. 23682/13, § 78, 22 March 2016; Škorjanec v. Croatia, no. 25536/14, § 55, 28 March 2017; and Weller v. Hungary, no. 44399/05, § 37, 31 March 2009).”
(ii) This judgment, moreover, provided the Court with a rare opportunity to reinforce certain principles governing the protection of minorities. The Court found that it could not be assumed that a testator of Muslim faith, having drawn up a will in accordance with the Civil Code, had automatically waived his right, or that of his beneficiaries, not to be discriminated against on the basis of his religion. The State could not take on the role of guarantor of the minority identity of a specific population group to the detriment of the right of that group’s members to choose not to belong to it or not to follow its practices and rules:
“157. Refusing members of a religious minority the right to voluntarily opt for and benefit from ordinary law amounts not only to discriminatory treatment but also to a breach of a right of cardinal importance in the field of protection of minorities, that is to say the right to free self-identification. The negative aspect of this right, namely the right to choose not to be treated as a member of a minority, is not limited in the same way as the positive aspect of that right. The choice in question is completely free, provided it is informed. It must be respected both by the other members of the minority and by the State itself. That is supported by Article 3 § 1 of the Council of Europe Framework Convention for the Protection of National Minorities which provides as follows: ‘no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.’ The right to free self-identification is not a right specific to the Framework Convention. It is the ‘cornerstone’ of international law on the protection of minorities in general. This applies especially to the negative aspect of the right: no bilateral or multilateral treaty or other instrument requires anyone to submit against his or her wishes to a special regime in terms of protection of minorities.”
(iii) A number of other elements of the Court’s reasoning are worth highlighting. While the Court accepted that the State had undertaken to respect the customs of the Muslim minority in ratifying the Treaties of Sèvres and Lausanne, it did not consider that those treaties required Greece to apply Sharia law; indeed, the Government and the applicant had agreed on that point. In addition, the domestic courts disagreed as to whether the application of Sharia law was compatible with the principle of equal treatment and with international human rights standards: those divergences were serious (between courts of the same judicial branch, between the Court of Cassation and the civil courts, and between the Court of Cassation and the Supreme Administrative Court). The legal uncertainty created by such divergence was incompatible with the rule of law. Furthermore, several international bodies had expressed their concern about the application of Sharia law to Greek Muslims in Western Thrace and about the resulting discrimination, in particular against women and children, not only within that minority as compared to men, but also in relation to non-Muslims (notably, the Council of Europe Commissioner for Human Rights).
(iv) Lastly, the comparative position was also very clear. Outside of the sphere of private international law (and the possibility of applying Sharia law as a source of foreign law in the event of a conflict of laws, subject to the requirements of public policy), only France had officially applied some provisions of Sharia law and that was to citizens of one of its overseas territories (Mayotte) and this limited application of Sharia law had ended in 2011. In the United Kingdom, the application of Sharia law by the Sharia Councils is accepted only in so far as recourse to it remains voluntary. Therefore Greece was the only country in Europe which, up until the material time, had applied Sharia law to a section of its citizens against their wishes[147].
Protection of property (Article 1 of Protocol No. 1)
Enjoyment of possessions
O’Sullivan McCarthy Mussel Development Ltd v. Ireland[148] concerned measures taken by the respondent State to comply with a judgment of the Court of Justice of the European Union (CJEU) finding that it had infringed European Union environmental law.
The applicant company fished for mussel seed, which it was authorised to do on an annual basis. Its activities were conducted in a harbour which had been designated as a specially protected site in accordance with domestic law giving effect to EU directives on the protection of the environment. In 2007 the CJEU, following infringement proceedings initiated by the European Commission in 2004, found, among other matters, that Ireland had failed to comply with its obligations under one such directive (Article 6 § 3 of the Habitats Directive) by not carrying out assessments of the impact of aquaculture activities (such as mussel-seed fishing) on the environmental integrity of specially protected sites (such as the harbour where the applicant company conducted its economic activity). In response to the CJEU’s finding, the authorities temporarily suspended the applicant company’s authorisation to fish for mussel seed in the harbour in order to implement a compliance strategy in consultation with the Commission. The applicant company was ultimately unsuccessful in the domestic proceedings it brought to challenge the measure and claim compensation.
In the Convention proceedings, the applicant company alleged, among other things, that there had been a violation of its rights under Article 1 of Protocol No. 1 due to economic loss for which it held the domestic authorities responsible and for which it had received no compensation.
The Court found that there had been no breach of that provision. The following points may be highlighted.
Firstly, as to the applicability of Article 1 of Protocol No. 1, the Court observed that the applicant company had been authorised to fish for mussel seed in the harbour. That was its business activity, made possible by the grant of the relevant permission, and it was that activity, linked to the official authorisation, which amounted to its “possessions”. The temporary prohibition on mussel-seed fishing in the harbour constituted an interference in the form of a control of use of its right to the peaceful enjoyment of its “possessions” (see also Malik v. the United Kingdom[149], and Centro Europa 7 S.r.l. and Di Stefano v. Italy[150]). Interestingly, the Court went on to observe that in assessing the nature and extent of the interference it would bear in mind, among other matters, that the authorisation had not been withdrawn or revoked and that the impugned interference consisted of a temporary prohibition of part of the applicant company’s activities.
Secondly, regarding the aim of the interference, the Court readily accepted that the measure was intended to protect the environment and to comply with the State’s obligations under EU law, and in respect of both matters it enjoyed a wide margin of appreciation. Regarding the protection of the environment in particular, the Court took the opportunity to point out once again (paragraph 109) that
“… this is an increasingly important consideration in today’s society, having become a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities (see, for example, Depalle, cited above, § 81; see also Matczyński, cited above, § 101). Public authorities assume a responsibility which should in practice result in their intervention at the appropriate time to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective (see, for example, S.C. Fiercolect Impex S.R.L. v. Romania, no. 26429/07, § 65, 13 December 2016). …”
Thirdly, the Court had to address the Government’s argument that the impugned interference stemmed directly from the judgment of the CJEU in the infringement proceedings, which meant that the domestic authorities had no room for manoeuvre. This is the first time that the so-called “Bosphorus presumption of equivalent protection” issue has been framed in these terms in Convention proceedings. Previous cases have involved EU regulations (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland[151], and Avotiņš v. Latvia[152]), or directives (Michaud v. France[153]). It is noteworthy that the Court found that the conditions for applying the Bosphorus presumption had not been met in the specific circumstances of the case, being of the view that, even if the judgment was binding on the respondent State, it was still left with some margin of manoeuvre in determining how to secure compliance. The Court observed (paragraph 112) as follows.
“In the present case, the obligation on the respondent State derived principally from Article 6 § 3 of the Habitats Directive. Ireland’s failure to fulfil its obligation thereunder was established in infringement proceedings, entailing a duty on the State to comply with the CJEU’s judgment and the secondary legislation examined in the context of those proceedings. While it was therefore clear that the respondent State had to comply with the Directive and, with immediacy, the CJEU judgment, both were results to be achieved and neither mandated how compliance was to be effected. The respondent State was therefore not wholly deprived of a margin of manoeuvre in this respect. On the contrary, the domestic authorities retained some scope to negotiate with the Commission regarding the steps to be taken … This included, at the proposal of the respondent State, both priority treatment and particular interim measures for Castlemaine harbour that were implemented with the agreement of the Commission. As the Court has previously stated, the presence of some margin of manoeuvre is capable of obstructing the application of the presumption of equivalent protection (see Michaud, cited above, § 113; see also M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 338, ECHR 2011). ”
Interestingly, the Court left open the question whether a judgment of the CJEU in infringement proceedings could in other circumstances be regarded as leaving no margin of manoeuvre for the member State in question.
Finally, as to the proportionality of the interference, the Court found several reasons for concluding that a fair balance had been struck in the instant case. Among other considerations, it noted the following.
(i) At least from the date of the CJEU judgment (2007), and arguably from the bringing of the infringement proceedings by the Commission (2004), the applicant company, being a commercial operator, should have been aware of a possible risk of interruption of, or at least some consequences for, its usual commercial activities (see Pine Valley Developments Ltd and Others v. Ireland[154]; see also, mutatis mutandis, Forminster Enterprises Limited v. the Czech Republic[155]). The extent and consequences of any infringement judgment could not be foreseen, but the risk of some interruption could clearly not be excluded.
(ii) While the impugned interference had an appreciable adverse impact on the applicant company’s business, the Court considered that it was not in a position to find, as an established fact, that the applicant company’s loss of profits was the inevitable and immitigable consequence of the temporary closure of the harbour.
(iii) The applicant company was not required to cease all of its operations in 2008, and in 2009 it was able to resume its usual level of business activity; the harbour in question was in fact given priority over other specially protected sites when it came to the carrying out of environmental impact assessments.
(iv) The weight of the legitimate aims pursued is of relevance, as is the strength of the general interest in the respondent State in achieving full and general compliance with its obligations under EU environmental law. It is noteworthy that the Court observed in this connection that the fact that the respondent State was found not to have fulfilled its obligations under EU law should not be taken, for the purposes of Article 1 of Protocol No. 1, as diminishing the importance of the aims of the impugned interference, or as lessening the weight to be attributed to them.
(v) Compliance with the CJEU’s judgment was not confined to the harbour in question. There were many other specially protected sites throughout the country which also had to be brought into line with the State’s obligations under EU environmental law. For the Court, achieving compliance on this wide scale, and within an acceptable time frame, could certainly be regarded as a matter of general interest of the community, attracting a wide margin of appreciation for the domestic authorities.
Könyv-Tár Kft and Others v. Hungary[156] concerned the adoption of measures in the school-procurement sector resulting in the loss of the applicant companies’ clientele.
The applicant companies supplied textbooks to schools. This sector, the distribution or supply sector, was unregulated and was subject to competitive forces. The authorities decided to place the supply of schoolbooks to schools under the responsibility of a State-owned entity. The legislative measures became effective from the school year beginning in September 2013 and formed part of the reform of the organisation of the State’s public-education system. The applicants complained under Article 1 of Protocol No. 1.
The Court had to decide, as a matter of admissibility, on whether Article 1 of Protocol No. 1 was applicable in the instant case. The Government pleaded that the applicant companies could only rely on a mere hope that they would be able to continue to operate under the previous unregulated system and to continue to enjoy indefinitely the advantages which had accrued to them. The Court answered that argument with reference to its established case-law on the circumstances in which the building-up of a clientele can be considered to give rise to an asset and therefore “possessions” within the meaning of Article 1. The judgment provides a comprehensive overview of the case-law in this area (Iatridis v. Greece[157]; Van Marle and Others v. the Netherlands[158]; Malik v. the United Kingdom[159]; Döring v. Germany[160]; Wendenburg and Others v. Germany[161]; Buzescu v. Romania[162]; and Oklešen and Pokopališko Pogrebne Storitve Leopold Oklešen S.P. v. Slovenia[163]). Applying that case-law, the Court found as follows (paragraph 32).
“[T]he applicant companies, who had been in the schoolbook-distribution business for years, had built up close relations with the schools located in their vicinity. The volume of clients in this business is limited, as it will always correspond to the number of schools and pupils in a given region. The Court is therefore convinced that the clientele – although somewhat volatile in nature – is an essential basis for the applicant companies’ established business, which cannot, by the nature of things, be easily benefited from in other trading activities. Indeed, the applicant companies’ lost clientele has in many respects the nature of a private right, and thus constitutes an asset, being a ‘possession‘ within the meaning of Article 1 of Protocol No. 1 (see Van Marle and Others, Döring, and Wendenburg and Others, all cited above). …”
G.I.E.M. S.r.l. and Others v. Italy[164] concerned the confiscation of property in the absence of a criminal conviction and the principle of legality.
The applicants are companies incorporated under Italian law and an Italian citizen, Mr Gironda. Court orders, confiscating their land and buildings, were issued against them on the ground of unlawful development of their land. However, no criminal proceedings for unlawful development had been issued against the directors of G.I.E.M. S.r.l., the other applicant companies had not been parties to the criminal proceedings against their directors and, although Mr Gironda had been a defendant in criminal proceedings, that action had been discontinued as time-barred. The applicants relied on Article 7 of the Convention and Article 1 of Protocol No. 1.
The Grand Chamber found, as in Sud Fondi S.r.l. and Others v. Italy[165], a violation of Article 1 of Protocol No. 1 in respect of all the applicants. A number of points are worth noting.
The Grand Chamber did not pronounce on whether the violation of Article 7 it had concluded meant that the confiscations were devoid of legal basis and thus a breach of Article 1 of Protocol No. 1.
Although the Court noted the legitimacy of policies in favour of environmental protection (Depalle v. France[166], and Brosset-Triboulet and Others v. France[167]), it was left in some doubt as to whether the confiscation measures had actually contributed to that aim.
The proportionality of the interference was assessed having regard to a number of factors identified by the Grand Chamber, which included the degree of culpability or negligence on the part of the applicants or, at the very least, the relationship between their conduct and the offence in question.
The importance of procedural guarantees was also emphasised in that respect, as judicial proceedings concerning the right to the peaceful enjoyment of possessions had to afford an individual a reasonable opportunity of putting his or her case to the competent authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by Article 1 of Protocol No. 1.
The judgment in Lekić v. Slovenia[168] concerned lifting the corporate veil by the State to ensure market stability and financial discipline.
The Financial Operations of Companies Act 1999 (“the FOCA”) allowed the courts to strike off inactive companies and hold “active members” liable for company debt. The aim was to ensure market stability and financial discipline: a large number of dormant companies existed with debts and no assets (as a result of the transition from a socialist to a free-market economy) and the more usual winding-up proceedings would have inundated the courts. “Active members” was defined by the Constitutional Court in 2002 as those in a position to influence the company’s operations. The company, of which the applicant was a minority shareholder (and a former managing director), was struck off and, following enforcement proceedings (2002-07), the applicant was held liable for a debt of the company. The Grand Chamber found that there had been no violation of Article 1 of Protocol No. 1.
This is the first time the Court has determined the principles by which it will assess the necessity under Article 1 of Protocol No. 1 of a State measure, contested by the applicant, lifting the corporate veil[169].
(i) The Court’s review of the lawfulness, and notably of the foreseeability, of the interference provides guidance as to the level of attention a State can expect a minority shareholder to pay to the activities of the company and the relevant regulatory framework. The Court reiterated the high degree of caution expected of a professional, including taking special care in assessing the risks that an activity entails (Cantoni v. France[170], and Karácsony and Others v. Hungary[171]), which principles applied to persons engaging in commercial activities (Špaček, s.r.o. v. the Czech Republic[172], and Forminster Enterprises Limited v. the Czech Republic[173]). As a minority shareholder and former managing director, the applicant had been well aware of the state of the company and of the proceedings by the creditor in question and he should have been aware of the provisions of the FOCA ( J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom[174]). Interestingly, the Constitutional Court’s definition of “active member” (those in a position to influence the company with at least 10% of the shares) was considered not arbitrary given the statutory rights enjoyed by those with such a shareholding and given the similar benchmark of relevant international organisations (such as the Organisation for Economic Co-operation and Development in its Benchmark Definition of Foreign Direct Investment, 4th Edition 2008). Finally, while the decisions in the striking-off proceedings were served on the company and not the applicant, the Court effectively endorsed the view that the applicant, as an active member, should have been aware of the risks and taken steps to collect the company’s letters, adding that “as long as the members … maintained the company’s existence …, they should have ensured some basic management [of it]”.
(ii) As to whether a fair balance had been struck by the impugned measure between the competing interests involved, the Grand Chamber accepted that the impugned measure was in the public interest and, notably, that there could be a paramount need for a State to act to avoid irreparable harm to the economy as well as to enhance legal security and market confidence.
(a) In the first place, the Grand Chamber identified the particular principles relevant to the fair-balance exercise in this context. In Agrotexim and Others v. Greece[175] the Court had found that lifting the corporate veil and disregarding the company’s legal personality would be justified only in exceptional circumstances. However, the Grand Chamber relied on a judgment of the International Court of Justice (Barcelona Traction, Light and Power Company, Limited[176]) to distinguish, on the one hand, claims to lift the corporate veil “from within” the company by shareholders who wish to be acknowledged as victims (as in Agrotexim and Others, cited above; see also Centro Europa 7 S.r.l. and Di Stefano v. Italy[177]) and, on the other, claims to lift the corporate veil by or in favour of a creditor “from without”, as in the present case. While the Agrotexim and Others case-law could not therefore be transposed to the present case, the Grand Chamber nevertheless found that, in assessing fair balance, it would “take into account” the principle that lifting the corporate veil and holding a shareholder liable for company debts should be made necessary “by exceptional circumstances and counterbalanced by specific safeguards” and it clarified that “exceptional” concerned the nature of the issues and not their frequency.
(b) The Court went on to apply those principles and to carry out the balancing exercise in the present case.
– It would appear that the “exceptional circumstances” concerned the general market situation faced by the State when legislating in 1999. The Court noted, inter alia, the serious and post-socialist problems in Slovenia concerning 6,500 dormant companies not complying with the basic conditions that companies had to satisfy in a free market; that the situation was of some urgency; the parameters of the legislation; the need to address the position of unpaid creditors; as well as the quality and depth of the various legislative and judicial reviews over the years (Animal Defenders International v. the United Kingdom[178]).
– The Grand Chamber went on to consider the particular situation of the applicant including: the extent of his shareholding (11.11%); his involvement in the company (former managing director, still active in the company); his rights and obligations as a minority shareholder; as well as the modest nature of the debt to be discharged by him. It also reviewed the specific situation of the company: it had not been adequately capitalised even when it was converted into a limited liability company and was thus in breach of company law; it did not apply for winding-up for years and then it failed to pay the fees; and, since the FOCA only became applicable one year after it had come into force, the company and its shareholders had had a period of one year to issue proceedings to have it wound up, thus avoiding the application of the FOCA and shareholder liability for company debts. Account was also taken of the position of the creditor, which had been subjected to prolonged uncertainty as regards payment of the debt. Interestingly, the Court rejected the applicant’s claim that the FOCA was against the fundamental principles of company law in the European Union and, notably, contrary to the judgment of the Court of Justice of the European Union in Idryma Typou AE v. Ypourgos Typou kai Meson Mazikis Enimerosis[179]: the breach in that case had been based on the fact that liability was imposed on shareholders for fines as regards a matter on which those shareholders had no influence.
(c) Consequently, all of the above considerations (in particular, his involvement in the running of the company, the amount of the debt paid by him and the national context) led the Court to conclude that the impugned measure did not entail the imposition of an individual and excessive burden on the applicant. The Court therefore found that there had been no breach of Article 1 of Protocol No. 1.
It would appear therefore that the “exceptional circumstances” and “counterbalancing safeguards” are elements to be taken into account, but that the compatibility with Article 1 of Protocol No. 1 of a measure to lift the corporate veil “from without” will also depend on the particular facts of each case and on, inter alia, the situation of the relevant actors (shareholder, company and creditor) in question.
Control of the use of property
Könyv-Tár Kft and Others v. Hungary[180] concerned the adoption of measures in the school-procurement sector resulting in the loss of the applicant companies’ clientele.
The applicant companies supplied textbooks to schools. The distribution and supply sector was unregulated and was subject to competitive forces. The authorities decided to place the supply of schoolbooks to schools under the responsibility of a State-owned entity. The legislative measures became effective from the school year beginning in September 2013 and formed part of the reform of the organisation of the State’s public-education system. The applicant companies complained under Article 1 of Protocol No. 1 that the State’s new monopoly effectively barred them from the school-supply market, which was their exclusive or major field of activity, and that they were not compensated for their consequential financial losses. The Court found a breach of that Article.
Apart from the question of the applicability of Article 1 of Protocol No. 1, the judgment is of interest in two respects.
Firstly, the Government emphasised that the primary reason for introducing the impugned legislation had been to strengthen the market position of the procurer vis-à-vis publishers in order to ensure a more efficient spending of public funds. The Court, however, was not persuaded by this argument. It noted among other things that the prices of schoolbooks were and remained State-regulated, entailing no benefit for parents and pupils in financial terms. Interestingly, it was prepared to assume that the reform measure pursued a legitimate aim.
Secondly, and importantly, the Court held on the merits that the impugned interference, seen as a control of use, was disproportionate in the circumstances and failed to strike a fair balance between the interests at stake. It noted from its own analysis of the school-supply market that the measure impugned by the applicants could not be justified in terms of the need either to protect the individuals who ultimately paid for textbooks and used them, namely parents and pupils, or to ensure fair competition in the market in question. For the Court, the measure introduced a system of schoolbook procurement whereby the applicant companies’ entire clientele was taken over by a State-owned entity and, as from the 2013/14 school year, they found themselves practically excluded from negotiating schoolbook-distribution contracts. The Court also gave weight to a number of other considerations, including: the applicant companies only had an eighteen-month period to adjust to the new circumstances; no measures were put in place to protect them from arbitrariness or to offer them redress in terms of compensation; the new State monopoly in the school-supply sector made it impossible for the applicants to continue or reconstitute their business outside the sector; the lack of real benefits for parents or pupils.
The judgment is important given that the Court observed that this is an area in which the respondent State enjoyed a wide margin of appreciation when determining the nature, scope and manner of implementation of reform measures, but went on to find a breach of the Convention. It stressed in this connection (paragraph 58) that such measures
“… must not be disproportionate in terms of the means employed and the aim sought to be realised; and must not expose the business players concerned to an individual and excessive burden. In the present case the drastic change to the applicant companies’ business was not alleviated by any positive measures proposed by the State. Moreover, the intervention concerned a business activity that was not subject to previous regulations, the business activities were not in any sense dangerous, and the applicants were not expected to assume that the business would be de facto monopolised by the State (see Oklešen and Pokopališko Pogrebne Storitve Leopold Oklešen S.P.; as well as, a contrario, Pinnacle Meat Processors Company and 8 Others; Ian Edgar (Liverpool) Ltd, and Tipp 24 AG, all cited above)”.
Positive obligations
Kurşun v. Turkey[181] concerned the destruction of the applicant’s property as a result of an explosion at an oil refinery and the scope of the State’s positive and procedural obligations in respect of the right of ownership.
The applicant’s property was destroyed as a result of an explosion at a nearby oil refinery operated by Tüpraş, a State-owned entity at the time. Several investigations were conducted into, among other things, the cause of the explosion and responsibility for it. The conclusions of the different investigations were not entirely conclusive as regards the issue of responsibility. Criminal proceedings initiated against a number of executives of Tüpraş were ultimately discontinued as time-barred. The applicant took civil proceedings against Tüpraş, but his claim for compensation was finally dismissed by the Court of Cassation because of his failure to comply with the one-year time-limit for suing a tortfeasor contained in Article 60 § 1 of the former Code of Obligations. According to that provision, tort actions had to be brought within one year of the date on which the victim acquired knowledge of both the damage and the identity of those responsible. In the opinion of the Court of Cassation, the applicant should be considered to have known that Tüpraş was responsible for the explosion on the date it occurred. His claim was therefore out of time.
In the Convention proceedings, the applicant complained of the above events under Article 6 of the Convention (right of access to a court) and Article 1 of Protocol No. 1.
The Court found a breach of Article 6 as regards the manner in which the relevant chamber of the Court of Cassation interpreted and applied the time-limit in the applicant’s civil action.
The Court’s finding had implications for part of its reasoning under Article 1 of Protocol No. 1. Under those provisions the applicant complained among other things that the State authorities had neither taken the necessary preventive measures to protect his right to property, nor subsequently provided him with adequate remedies to enable him to vindicate his rights. Moreover, the criminal proceedings initiated after the incident had not complied with the requirements of effectiveness as described by the Court in Öneryıldız v. Turkey[182].
The Court noted that the operation of the refinery undoubtedly constituted a dangerous industrial activity. It observed that it had already held that in a situation where lives and property were lost as a result of a dangerous activity occurring under the responsibility of the public authorities, the scope of the measures required for the protection of dwellings was indistinguishable from the scope of those to be taken in order to protect the lives of residents (in essence, an adequate regulatory framework providing for all necessary safeguards in order to avoid risk to life – see Öneryıldız, cited above, §§ 106-08 and 134-36; Budayeva and Others v. Russia[183]; and Kolyadenko and Others v. Russia[184]). It then turned to the question whether the applicant had had effective remedies to challenge the alleged failure of the State to protect his property, bearing in mind the applicant’s criticism of the lack of effectiveness of the above-mentioned criminal proceedings and his reliance on the Öneryıldız standards. Importantly, it noted in this latter connection (paragraph 121) that
“… the duty to make available an effective criminal-law remedy as such does not have the same significance with regard to destroyed property as in the event of loss of life in this particular context (see, mutatis mutandis, Budayeva and Others, cited above, § 178; and compare with other types of interference with property rights that may require a criminal-law response, such as the deliberate destruction of property in the case of Selçuk and Asker v. Turkey, 24 April 1998, § 96, Reports 1998-II, or where the infringement is of a criminal nature, such as in the case of Blumberga v. Latvia, no. 70930/01, § 67, 14 October 2008). Even taking into account the complexity of the circumstances at issue, the Court does not consider that the stringent procedural requirements originally developed for use in cases involving the use of lethal force, and applied exceptionally to the very special circumstances as those arising in cases such as Öneryıldız despite the non-intentional nature of the deaths at issue (see, for instance, Oruk v. Turkey, no. 33647/04, §§ 50 and 65, 4 February 2014, and Sinim v. Turkey, no. 9441/10, §§ 62-64, 6 June 2017), can be readily applied in the present circumstances where the applicant’s complaint concerned mere property damage.”
This statement represents a development in the case-law as regards the scope of the State’s procedural obligations in this area. It is noteworthy that the Court agreed with the applicant that the criminal proceedings had been inadequate but went on to observe that an action for compensation against Tüpraş and the responsible State authorities before the civil and administrative courts “would not only be capable, but perhaps also more suitable, to provide the applicant with adequate redress”. Interestingly, the Court found it unnecessary to examine the admissibility or the merits of the applicant’s complaints concerning the alleged direct responsibility of Tüpraş for the explosion and the consequential damage to his property, taking into account the conclusion it had reached under Article 6 of the Convention. As to the applicant’s grievances against the State authorities, the Court noted that, although the prosecuting authorities were not required of their own motion to open a criminal investigation into whether there had been a failure by the State to avert the explosion, he could have requested them to do so. However, of greater significance is the Court’s emphasis on the importance of the compensatory remedy in this area. Consistent with its above approach to the notion of an effective remedy in respect of Tüpraş, the Court noted that the administrative courts were, in principle, empowered to establish the facts of the case, to attribute responsibility for the events in question and to deliver enforceable decisions. The applicant did not bring an administrative action against the State, and had therefore failed to exhaust an effective remedy.
Right to free elections (Article 3 of Protocol No. 1)
Free expression of the opinion of the people
In Selahattin Demirtaş v. Turkey (no. 2)[185], the Court examined the compatibility with Article 3 of Protocol No. 1 of a member of parliament’s continued pre-trial detention following his lawful arrest and detention.
The applicant was an elected member of the National Assembly and one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. On 20 May 2016 an amendment to the Constitution was adopted whereby parliamentary immunity was lifted in all cases where requests for its lifting had been transmitted to the National Assembly prior to the date of adoption of the amendment. This reform, encouraged by the President of Turkey, had its origin in clashes in Syria between Daesh and the forces of an organisation with links to the PKK, and in the fear of a spill-over of violence into Turkey, the occurrence of serious violence in October 2014 in several Turkish towns, and further outbreaks of violence in Turkey in the wake of the breakdown in 2015 of negotiations aimed at resolving the “Kurdish question”. The applicant, who had made speeches and statements on these events, was one of 154 parliamentarians (including 55 HDP members) affected by the constitutional amendment. On 4 November 2016 he was arrested on suspicion of membership of an armed terrorist organisation and of inciting others to commit a criminal offence. The applicant is still in detention awaiting trial. His parliamentary mandate expired on 24 June 2018.
The Court found that Article 3 of Protocol No. 1 had been breached. This is the first occasion on which it has had to consider the compatibility of the pre-trial detention of a member of parliament (MP) with that provision. Importantly, it noted that pre-trial detention did not automatically violate this provision, even if the detention was not in compliance with Article 5 § 3 of the Convention. The issue of compatibility had to be determined with reference to several factors, in particular, whether the domestic courts, when deciding to prolong an MP’s detention, demonstrated that they weighed in the balance the interests served by his or her continued detention and those underpinning the rights guaranteed by Article 3 of Protocol No. 1, including the right to sit as an MP once elected. Furthermore, it stressed that whether or not the prolongation of detention was a proportionate measure had to be assessed from the standpoint of its length and the consequential impact on an MP’s ability to perform his functions effectively.
Applying these considerations, the Court observed that the applicant was prevented from participating in the activities of the National Assembly (including voting) for one year, seven months and twenty days of his mandate. It noted that it had found earlier under Article 5 § 3 that the domestic courts did not give sufficient reasons for prolonging his detention. A central feature of the Court’s reasoning is the failure of the domestic courts to have sufficient regard to the fact that not only was the applicant an MP, he was also the leader of an opposition party “whose performance of his parliamentary duties required a high level of protection”; nor did it appear from the case file that the domestic courts genuinely considered the application of alternative measures to pre-trial detention. The Court’s reasoning is noteworthy in view of the prominence given to the role of an MP within the framework of the guarantees contained in Article 3 of Protocol No. 1. It also provided an important backdrop to the Court’s consideration of the applicant’s Article 18 complaint.
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146. Molla Sali v. Greece [GC], no. 20452/14, 19 December 2018.
147. See also the draft resolution of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, adopted on 13 December 2018, “Compatibility of Sharia law with the European Convention on Human Rights: can States Parties to the Convention be signatories of the ‘Cairo Declaration’?”.
148. O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, 7 June 2018.
149. Malik v. the United Kingdom, no. 23780/08, §§ 91-92 and 94, 13 March 2012.
150. Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 177-78, ECHR 2012.
151. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI.
152. Avotiņš v. Latvia [GC], no. 17502/07, §§ 101-05, 23 May 2016.
153. Michaud v. France, no. 12323/11, ECHR 2012.
154. Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 59, Series A no. 222.
155. Forminster Enterprises Limited v. the Czech Republic, no. 38238/04, § 65, 9 October 2008.
156. Könyv-Tár Kft and Others v. Hungary, no. 21623/13, 16 October 2018.
157. Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II.
158. Van Marle and Others v. the Netherlands, 26 June 1986, § 41, Series A no. 101.
159. Malik v. the United Kingdom, no. 23780/08, § 89, 13 March 2012.
160. Döring v. Germany (dec.), no. 37595/97, ECHR 1999-VIII.
161. Wendenburg and Others v. Germany (dec.), no. 71630/01, ECHR 2003-II (extracts).
162. Buzescu v. Romania, no. 61302/00, § 81, 24 May 2005.
163. Oklešen and Pokopališko Pogrebne Storitve Leopold Oklešen S.P. v. Slovenia, no. 35264/04, § 54, 30 November 2010.
164. G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, 28 June 2018. See also under Article 6 § 2 (Presumption of innocence) and Article 7 (No punishment without law) above.
165. Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, 20 January 2009.
166. Depalle v. France [GC], no. 34044/02, § 84, ECHR 2010.
167. Brosset-Triboulet and Others v. France [GC], no. 34078/02, § 87, 29 March 2010.
168. Lekić v. Slovenia [GC], no. 36480/07, 11 December 2018.
169. In Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia ([GC], no. 60642/08, ECHR 2014), mainly under Article 1 of Protocol No. 1 concerning a failure to pay the debts of a State-owned bank, and in earlier cases concerning a failure to enforce domestic judgments against State-owned companies under Article 6 of the Convention and Article 1 of Protocol No. 1 (cases cited in Ališić and Others at §§ 114-15), the Court established the responsibility of the State to discharge the relevant debts and did not address the lifting of the corporate veil implicit in those findings.
170. Cantoni v. France, 15 November 1996, Reports of Judgments and Decisions 1996-V.
171. Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, 17 May 2016.
172. Špaček, s.r.o. v. the Czech Republic, no. 26449/95, 9 November 1999.
173. Forminster Enterprises Limited v. the Czech Republic, no. 38238/04, 9 October 2008.
174. J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, ECHR 2007-III.
175. Agrotexim and Others v. Greece, 24 October 1995, Series A no. 330-A.
176. Barcelona Traction, Light and Power Company, Limited, judgment of 5 February 1970, ICJ Reports 1970, p. 3.
177. Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, ECHR 2012.
178. Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013 (extracts).
179. Judgment of the Court of Justice of the European Union of 21 October 2010 in Idryma Typou AE v. Ypourgos Typou kai Meson Mazikis Enimerosis, C-81/09, EU:C:2010:622.
180. Könyv-Tár Kft and Others v. Hungary, no. 21623/13, 16 October 2018. See also under Article 1 of Protocol No. 1 (Possessions) above.
181. Kurşun v. Turkey, no. 22677/10, 30 October 2018. See also under Article 6 § 1 (Access to a court) above.
182. Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004-XII.
183. Budayeva and Others v. Russia, nos. 15339/02 and 4 others, § 173, ECHR 2008 (extracts).
184. Kolyadenko and Others v. Russia, nos. 17423/05 and 5 others, § 216, 28 February 2012.
185. Selahattin Demirtaş v. Turkey (no. 2), no. 14305/17, 20 November 2018 (not final). See also under Article 5 § 3 (Length of pre-trial detention) above and Article 18 (Restrictions not prescribed by the Convention) below.
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