ECHRCaseLaw

Temporary detention with a standard but insufficient reasoning. Violation of the right to personal liberty

JUDGMENT
Ghavalyan v. Armenia  22.10.2020 (app. no.  50423/08)
Temporary detention and reasoning. Adequate reasoning is required and not general and standard. Proportionality of temporary detention. Procedural guarantees for adversarial proceedings.
The applicant was charged with tax evasion and remanded in custody for 8 months. The decisions on pre-trial detention contained general reasons, not specific evidence. The domestic courts did not summon the applicant and her lawyer during the hearing of the appeals against the detention order and the Court of Cassation did not quickly consider the applicant’s appeal.

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Lack of impartiality of the court when in a trial for revealing state secrets 1/3 of the jurors were related to secret services!

JUDGMENT
Danilov v. Russia 01.12.2020 (app. no. 88/05)
Jurors, principle of impartiality and the right to examine witnesses.
A famous physicist was found guilty of treason for revealing state secrets. The applicant complained of jury bias and that his restrictions on the examination of witnesses meant that he did not have access to a fair trial.
The ECtHR found that bias issues were identified in the composition of the jury as 4 of the 12 jurors carried “state security clearance”. The national court should therefore have considered this issue in detail. The failure of the courts to do so violated the ECHR.

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The civil liability of an acquitted driver for driving under the influence of alcohol did not violate his presumption of innocence

JUDGMENT
Ilias Papageorgiou v. Greece 10.12.2020 (app. no. 44101/13)
Presumption of innocence and civil trials. Civil decisions against the applicant despite the fact that he was acquitted in criminal proceedings for the same facts. The applicant was involved in a car accident and his passenger was injured. He took two breathalyzer tests, with scores of 0.67 and 0.57 mg / l, but was later acquitted by the criminal court for driving under the influence of alcohol.
Lawsuit of the passenger against the applicant and his insurance company. The insurance company brought an action against the applicant. The civil court of first instance ordered the applicant and the insurance company to pay compensation to the passenger, but rejected the insurance company’s claim against the applicant. On appeal, the Athens Court of Appeal ruled that it was not bound by the applicant’s acquittal in the criminal courts and that, under the terms of the insurance contract, the applicant’s conduct relieved the insurance company of its liability. The Supreme Court held that Article 6 § 2 of the ECHR did not require the civil courts to be bound by the judgment of the criminal courts and therefore the Court of Appeal had not questioned the presumption of innocence of the applicant.

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Deportation for sexual assault on a minor. A proportional measure according to the ECHR.

JUDGMENT
M.M. v. Switzerland 8.12.2020 (app. no. 59006/18)
The case concerned the applicant’s expulsion from Switzerland for a period of five years following
the imposition of a 12-month suspended prison sentence for having committed acts of a sexual
nature against a child and consumed narcotics.
The Court recognised that the cantonal courts and the Federal Supreme Court had carried out a
serious assessment of the applicant’s personal situation and the various interests at stake. These
authorities had thus had very solid arguments in favour of the applicant’s expulsion from
Switzerland for a limited duration. In consequence, the Court concluded that the interference had
been proportionate to the legitimate aim pursued and had been necessary in a democratic society,
within the meaning of the Convention.

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Disciplinary sanction of non-promotion of a judge for harsh articles against the President of the Supreme Court. Accusations without proof. No violation of the right to freedom of expression

JUDGMENT
Panioglu v. Romania 08.12.2020 (app. no. 33794/14)
Judges and freedom of expression. Official sanctions against a judge, in particular concerning promotion, due to an article she had written in the press.
The applicant wrote an article in the press entitled “Nothing about how a Comrade Prosecutor has become president of all the judges”. In it she harshly criticized the activities of the President of the Court of Cassation during the period of the oppressive communist regime, whenever she worked as a Prosecutor. She wondered how the “Comrade Prosecutor” had acted to “uproot the enemies of the socialist class” and to “chase” women who had had an abortion. . She spoke of the “dungeons” and “poverty” under the regime and the prosecutors “somewhere above in an untouchable shining world … All these
comrades, usurpers of Christ and His Law, sternly guard[ing] the communist prison”. She spoke about living in grinding poverty while “the Comrade Prosecutor ha[d] also floated above”.

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Participation of a judge illegally appointed by the Minister of Justice in an appellate court. Violation of the right of access to a court established by law

GRAND CHAMBER JUDGMENT
Guðmundur Andri Ástráðsson v. Iceland 01.12.2020 (app. no. 26374/18)
The case concerned the applicant’s allegation that the new Icelandic Court of Appeal (Landsréttur)
which had upheld his conviction for road traffic offences was not “a tribunal established by law”, on
account of irregularities in the appointment of one of the judges who heard his case.
Given the potential implications of finding a violation and the important interests at stake, the Court
took the view that the right to a “tribunal established by law” should not be construed too broadly
such that any irregularity in a judicial appointment procedure would risk compromising that right.
It thus formulated a three-step test to determine whether irregularities in a judicial appointment
procedure were of such gravity as to entail a violation of the right to a tribunal established by law. It
then proceeded to find as follows.

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Illegal obstruction of the construction site of Jehovah’s Witnesses. Violations of the ECHR

JUDGMENT
The Religious Denomination of Jehovah’s Witnesses in Bulgaria v. Bulgaria 10.11.20 (app. no. 5301/11)
The right of believers of the doctrine of Jehovah’s Witnesses to freely express their faith and to have their own place of worship. Freedom of religion and freedom of assembly.
The applicant is an organization of Jehovah’s Witnesses in Bulgaria. It decided to build a temple, on her own property. The Mayor, by his decision, suspended the reconstruction works due to violation of urban planning provisions.
A court order was issued allowing the construction to continue, but the Mayor, due to legal action, failed to issue a decision to continue the works, instead publicly denouncing the doctrine of Jehovah’s Witnesses as a religion with a negative impact on its believers. The domestic courts did not find the mayor’s refusal to lift the suspension illegal.

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Establishment of an extraordinary criminal court for a bank fraud trial with all the legal guarantees provided. Non-violation of the independence and impartiality of the court

JUDGMENT
Bahaettin Uzan v. Turkey 24.11.2020 (app. no. 30836/07)
The right of every person to be tried by an independent and impartial court operating and established legally.
The applicant was accused of participating in a banking fraud through software resulting in the interception of a large sum of money transferred from the bank to the account of the company in which he was a managing director. The 8th Istanbul Criminal Court was established by law to adjudicate the case. He was sentenced to a fine of 12,314,900,000 euros and 17 years in prison. He complained about the lack of an independent and impartial court.
The Court reiterated that according to Article 6 § 1 of the Convention, “the organization of the judiciary in a democratic society does not depend on the discretion of the executive, but is governed by a law of  the Parliament”.

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Squatting of a hotel for 3 years for housing refugees. Conviction for violation of property rights and payment of 312,500 euros from Greece!

JUDGMENT
Papachela and Amazon S.A. v. Greece 03.12.20 (app. no. 12929/18)
The case concerned the occupation of a hotel for over three years by migrants and a group acting
out of solidarity with them. The hotel belongs to Ms Papachela and to a limited company, of which
she is the sole shareholder.
The applicants complained that the authorities had remained inactive when asked to evict the
squatters, who had remained in the hotel from April 2016 until July 2019, at which point they left
the premises of their own accord. In the meantime, the applicants had lodged a number of
complaints, which were either adjourned or not examined at all. A decision given by a Justice of the
Peace, ordering the eviction and recovery of possession of the hotel, was never enforced. During
that period Ms Papachela was forced to sell her house to cover the debts incurred as a result of the
squatters’ occupation (taxes, water and electricity bills) in order to avoid criminal proceedings.

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Strasbourg for the first time against the coronavirus! Inadmissible application for omissions and inadequate handling of the health crisis due to Covid-19, without the plaintiff being a victim!

JUDGMENT
Le Mailloux v. France 03.12.2020 (app. no. 18108/20)
The case concerned the applicant’s objections to the handling by the French State of the Covid-19
health crisis.
The Court observed that the applicant was complaining about the measures taken by the French State to curb the propagation of the Covid-19 virus among the whole population of France, but had not shown how he was personally affected. It reiterated that it did not recognise an actio popularis:
meaning that applicants cannot complain about a provision of domestic law, a domestic practice or
public acts simply because they appear to contravene the European Convention on Human Rights. In
order for applicants to be able to claim to be a victim, they must produce reasonable and convincing
evidence of the likelihood that a violation affecting them personally will occur.
The application was thus incompatible with the European Convention.

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ECHRCaseLaw

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