Regional Human Rights Systems – Europe – I

Opuz versus Turkey

A domestic violence case, where a husband inflicted life-threatening injuries to his wife and her
mother. Despite complaints of early violence, Turkey did not act, resulting in the death of the
mother, stating ‘Family Matter’. This was the first judgment of the court on domestic violence
where it found a violation of Articles 2, 3 and 14. The criminal justice system of Turkey was
found to be not deterrent enough. The court held that the authorities failed to perform their
positive obligation to protect the right to life of a person where there existed a real and
immediate risk to her life from reasonably foreseeable criminal acts of a third party. Condemning
the overall unresponsiveness of the Turkish judicial system the Court awarded EUR 30,000 in
respect of non-pecuniary damage to the applicant.
Khamila Isayeva versus Russia
The applicant had lodged applications with the Court complaining of the disappearance and
death or presumed death of Mr Isayev during Russian military operations in Chechnya. Although
criminal investigations had been launched, they were still pending several years later and there
had been no prosecutions. Following the communication of the case, the Government were
repeatedly asked for copies of the criminal investigation files, however they declined to produce
certain documents on the grounds that their disclosure would violate Article 161 of the Russian
Code of Criminal Procedure as the documents concerned contained information of a military
nature or personal data on witnesses and other participants in the criminal proceedings. The
Court found violations of Articles 2 (substantive and procedural limbs), 3, 5 and 13 (in
conjunction with Article 2). The Court held that the State's obligation to protect the right to life
and in respect of the failure to conduct an effective investigation into the circumstances in which
Mr Sultan Isayev disappeared is a violation of the Convention. The applicant was awarded sums
in respect of pecuniary and non-pecuniary damage.
El-Masri versus ìthe former Yugoslav Republic of Macedoniaî (13 December 2012) 5 Human
Rights and Duties International Human Rights Law Regional Human Rights Systems - Europe -
II A German national of Lebanese origin alleged that on 31†December 2003 he boarded a bus for
Skopje. At the Macedonian border a suspicion arose as to the validity of his passport. He was
questioned by the Macedonian authorities about possible ties with several Islamic organisations
and groups. He was arrested and tortured in Skopje then transferred by the CIA to a secret place
of detention in Afghanistan where he was held for five months. On 29 May 2004 the applicant
was returned to Germany via Albania and in October 2008 the applicant lodged a criminal
complaint with the Skopje public prosecutorís office, but this was rejected as being
unsubstantiated. The Court found violations of Articles 3, 5, 8 and 13 of the Convention and held
that ìthe former Yugoslav Republic of Macedoniaî had been responsible for his torture and ill-
treatment both in the country itself and after his transfer to the US authorities in the context of an
extrajudicial ìrenditionî. It held that the State had not conducted an effective investigation into
the applicantís allegations of ill-treatment and therefore his detention was arbitrary. The Court
award the applicant EUR 60,000 in respect of non-pecuniary damage under Article 41 of the
Convention. Selmouni versus France (28 July 1999) Ahmed Selmouni complained of assaults on
him while in police custody in Bobigny from 25 to 29 November 1991. A judicial investigation
was opened in the Bobigny where the judge transferred it to a judge attached to the Versailles
tribunal de grande instance, in the interests of the proper administration of justice. The court
sentenced the guilty police officers. The applicant complained that, on account of ill-treatment
which he alleged he had suffered during police custody and the length of the proceedings relating
to his criminal complaint and application to join the proceedings as a civil party, there had been a
violation of Article 3 of the European Convention on Human Rights, which prohibits torture and
inhuman and degrading treatment, and of Article 6 ß 1 of the Convention, which guarantees the
right to a decision on civil rights and obligations within a reasonable time. The Court found
elements which were sufficiently serious to render such treatment inhuman and degrading. The
Court also observed that the applicant had been subjected to a certain number of acts which
would have been heinous and humiliating for anyone, irrespective of their condition. The Court
noted that these events had not been confined to any one period of police custody during which 6
Human Rights and Duties International Human Rights Law Regional Human Rights Systems -
Europe - II without this in any way justifying them heightened tension and emotions might have
led to such excesses. It had been clearly established that Mr Selmouni had endured repeated and
sustained assaults over a number of days of questioning and such conduct had to be regarded as
acts of torture for the purposes of Article 3 of the Convention. The Court considered that the
ëreasonable timeí prescribed by Article 6 ß 1 had been exceeded as the proceedings were still
pending in appeal and already six years and seven months had lapsed. The Court awarded
damages to the applicant and emphasized the need for breaches of the fundamental values of
democratic societies to be assessed ever more stringently with the rising level of expectation for
protection of human rights and fundamental freedoms. Bayatyan versus Armenia (7 July 2011)
This case concerned a Jehovahís Witness who had been declared fit for military service, when he
informed the authorities that he would not serve in the military on conscientious grounds but was
ready to carry out alternative civil service. On January 25, 2001 when Armenia joined the
Council of Europe, it took an to introduce civilian service as an alternative to compulsory
military service within three years and to pardon all conscientious objectors sentenced to
imprisonment. In May 2001, when Jehovahís Witness, the applicant here, was summoned to
commence his military service he failed to report for duty and temporarily left his home for fear
of being forcibly taken to the military. He was charged with draft evasion and in 2002 was
sentenced to two and a half yearsí imprisonment. He was released on parole after serving about
ten and a half months of his sentence. At the material time in Armenia there was no law offering
alternative civil service for conscientious objectors. This was the first case under Article 9
(freedom of thought, conscience and religion) of the Convention before the Court where it
examined its applicability to conscientious objectors. When the applicant was released from
imprisonment, Armenia had recognized the right to conscientious objection. On deciding the
applicability of Article 9 in this situation, the Court held that although Article 9 did not explicitly
refer to a right to conscientious objection, opposition to military 7 Human Rights and Duties
International Human Rights Law Regional Human Rights Systems - Europe - II service
motivated by a serious and insurmountable conflict between the obligation to serve in the army
and an individualís conscience or deeply and genuinely held religious or other beliefs constituted
a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the
guarantees of Article†9. The applicant in this case did not report for military service owing to his
religious manifestations. Imposition of criminal sanctions in such situation cannot be regarded as
necessary for a democratic society. Lastly, applicantís prosecution and conviction by the
authorities in Armenia only took place after Armenia had acceded to the Council of Europe.
Therefore, Armenia was in violation of Article 9 and was asked to pay EUR 10,000 in respect of
nonpecuniary damage to the applicant. Alexandridis versus Greece (21 February 2008) When the
applicant was admitted to practice as a lawyer at a court of first instance, he had to take an oath
of office which according to the national legislation was a religious oath. He was obliged to
declare that he was an atheist or that his religion did not permit him to take an oath. The court
secretariat provided him with a form containing a standard text of the oath, which he submitted
to the President of the court. When the President asked him to place his right hand on the bible to
take the oath, he had informed her that he was not an Orthodox Christian and therefore wanted to
make a solemn declaration, which he had been allowed to do. The Greek Government stated that
there were two different forms, one for the religious oath and the other for a solemn declaration.
The applicant had not asked for the correct form and had filled out the form used for the religious
oath. The Government mentioned that the applicant had indeed taken the form for religious oaths
with him when he appeared before the president of the court, but had then requested permission
to make a solemn declaration. He had made no attempt to have the document rectified
subsequently. The Court held that in this case the procedure for taking oaths reflected a
presumption that lawyers going before the court were Orthodox Christians and wished to take the
religious oath. Hence, when the applicant went to the court, he had been obliged to declare that
he was not an Orthodox Christian and, hence, to reveal in part his religious beliefs in order to be
allowed to make a solemn declaration. The State authorities did not have the right to intervene in
the sphere of individual conscience and to ascertain individualsí religious beliefs or oblige them
to reveal their beliefs concerning spiritual matters. From the given evidence, the Court was
unable to conclude that two 8 Human Rights and Duties International Human Rights Law
Regional Human Rights Systems - Europe - II forms had existed at the material time. There was
a violation of Article 9 because of the fact that the applicant had had to reveal to the court that he
was not an Orthodox Christian and that he wanted to make a solemn declaration rather than take
the religious oath, had interfered with his freedom not to have to manifest his religious beliefs.
Nagla versus Latvia (16 July 2013) In this case, the applicant worked for the national television
broadcaster where she produced and hosted a weekly investigative news programme De Facto. In
February 2010, she informed the public of an information leak from the State Revenue Service
(VID) database on the basis of the information received from an anonymous source. The VID
initiated criminal proceedings against the source, called Neo, as he had published information
concerning the salaries of state officials in various public institutions. The investigating police
interviewed the applicant as a witness but she refused to disclose the identity of her source. The
investigating police searched the applicantís house and seized a laptop, an external hard drive, a
memory card, and four flash drives on the basis of a search warrant. The Court found a violation
of Article 10 (Freedom of expression) emphasizing that the right of journalists not to disclose
their sources could not be considered a privilege, dependent on the lawfulness or unlawfulness of
their sources, but rather as an intrinsic part of the right to information. The Court found that there
had been interference with the applicantís freedom to receive and impart information which
interference was prescribed by law and pursued the aims of preventing disorder or crime and of
protecting the rights of others. The search and seizure warrant on the basis of which authorities
exercised their powers was rather vaguely drafted. The right of journalists not to disclose their
sources was important as it kept the public informed about the salaries paid in the public sector at
a time of economic crisis and about the database of the VID. While proceeding with the
operation the authorities did not examine the proportionality between the public interest in the
investigation and the protection of the journalistís freedom of expression. Such urgent search
warrant could be carried out ëìto prevent the destruction, concealment or damaging of evidence.î
Applicant was only a witness with respect to the criminal proceedings against the source.
Therefore, authorities had failed 9 Human Rights and Duties International Human Rights Law
Regional Human Rights Systems - Europe - II to give ìrelevant and sufficientî reasons for the
interference complained of and were asked to pay EUR 10,000 in respect of non-pecuniary
damage. Hirsi Jamaa and others versus Italy (23 February 2012) A group of migrants, eleven
Somalis and thirteen Eritreans nationals coming from Libya as part of a group of about two
hundred individuals filed an application before the European Court. The group boarded three
vessels with the aim of reaching the Italian coast but while were within the Maltese Search and
Rescue Region of responsibility they were intercepted by ships from the Italian Revenue Police
and the Coastguard. Then they were transferred onto Italian military ships and returned to
Tripoli. During the voyage no efforts were made to identify the group and they were not
informed about their destination but were finally forcefully handed over to the Libyan
authorities. Two of the applicants died in unknown circumstances after the events in question
and fourteen of the applicants were granted refugee status by the Office of the High
Commissioner for Refugees in Tripoli between June and October 2009. The Court held that
despite the complex migrant situation, States are not absolved of their obligation not to remove
an individual at risk of being subjected to treatment in breach of Article†3 in the receiving
country. The Court concluded that by transferring the applicants to Libya, the Italian authorities
had, in full knowledge of the facts, exposed them to treatment prescribed by the Convention.
While assessing the risk of ill-treatment in the applicantís countries of origin, the Court held that
when the applicants were transferred to Libya, the Italian authorities had or should have known
that there were insufficient guarantees protecting them from the risk of being arbitrarily returned
to their respective countries of origin. The Court for the first time held that there was a breach of
Article 4 of Protocol No. 4 to the European Convention to a case involving the removal of aliens
to a third State carried out outside national territory. The transfer of the migrants to Libya
without any examination of each individual situation had exposed them to the risk of ill-
treatment and had constituted a collective expulsion under the said provision of the convention.
The Court held that the Italian Government had to take all possible 10 Human Rights and Duties
International Human Rights Law Regional Human Rights Systems - Europe - II steps to obtain
assurances from the Libyan authorities that the applicants would not be subjected to treatment
incompatible with Article†3 of the Convention or arbitrarily repatriated. Conclusion We learnt in
this and the previous module that the Council of Europe established the European Convention on
Human Rights which is the supreme convention in Europe protecting individuals’ fundamental
rights and freedoms. The Convention sets up the European Court of Human Rights that has
effectively given decisions in a lot of cases, as discussed in this module and the previous
modules. The cases discussed above reflect on the application and interpretation of various
provisions of the European Convention in cases of human rights violations.