Late change in electoral law infringed right to stand for election of an association representing the Turkish minority

In today’s Chamber judgment in the case of Danis and Association of Ethnic Turks v. Romania (application no. 16632/09) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights in conjunction with Article 3 of Protocol No. 1 (right to free elections) to the Convention.

The case concerned the applicant association’s inability to meet the requirements for standing in the 2008 parliamentary elections following the entry into force of a new electoral law only seven months before the elections. The new law required national minority organisations not represented in Parliament to have been granted charitable status in order to be able to stand for election.

The Court observed that in the 2004 parliamentary elections the association had polled only slightly fewer votes than another association representing the Turkish minority, which had won a seat in Parliament as a result; it thus concluded that at that time the applicant association had satisfied all the requirements for standing for election and that it not had been able to organise its subsequent activities except in accordance with the statutory provisions in force at the relevant time.

The Court found in particular that by amending electoral legislation seven months before the 2008 parliamentary elections, the authorities had not given the applicants the opportunity to organise their activities in such a way as to be able to satisfy the eligibility criteria introduced as a result of the new legislation.

The ban on strike action imposed on a police trade union did not infringe its freedom of association

In today’s Chamber judgment in the case of Junta Rectora Del Ertzainen Nazional Elkartasuna (ER.N.E.) v. Spain (application no. 45892/09), the European Court of Human Rights held, unanimously, that there had been:

No violation of Article 11 (freedom of association) of the European Convention on Human Rights, taken alone and in conjunction with Article 14 (prohibition of discrimination).

The case concerned the inability of the members of a police officers’ trade union to exercise the right to strike.

The Court found in particular that the more stringent requirements imposed on “law-enforcement agents”, on account of the fact that they were armed and of the need for them to provide an uninterrupted service, justified the ban on strike action in so far as public safety and the prevention of disorder were at stake.

The Court noted that the specific nature of these agents’ duties warranted granting the State a lot of room for manoeuvre (“a wide margin of appreciation”) to regulate certain aspects of the trade union’s activities in the public interest, without however depriving the union of the core content of its rights under Article 11.

Investigation by a military court into the circumstances of a death during military service was sufficiently independent and thorough

In today’s Grand Chamber judgment in the case of Mustafa Tunç and Fecire Tunç v. Turkey (application no. 24014/05) the European Court of Human Rights held, by a majority, that there had been:

no violation of Article 2 (right to life) of the European Convention on Human Rights.

The case concerned the death of a young man, Cihan Tunç, during his military service, while assigned to a site belonging to a private oil company for which the national gendarmerie was providing security services.

The Court considered that the investigation conducted in this case had been sufficiently thorough and independent and that the applicants, Cihan Tunç’s parents, were involved in it to a degree sufficient to protect their interests and to enable them to exercise their rights. It pointed out that the independence of an investigation for the purposes of Article 2 is not necessarily to be assessed in the same manner as the independence of a tribunal within the meaning of Article 6 (right to a fair trial) of the Convention. It also emphasised that Cihan Tunç’s death had not occurred in circumstances which might, a priori, give rise to suspicions against the security forces as an institution, as for instance in the case of deaths arising from clashes involving the use of force in demonstrations, police and military operations or in cases of violent deaths during police custody.

Absence of assigned counsel: Court of Cassation failed to ensure practical and effective respect for defence rights

In today’s Chamber judgment in the case of Vamvakas v. Greece (no. 2) (application no. 2870/11) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 §§ 1 and 3 (c) (right to a fair hearing / to be assisted by counsel) of the European Convention on Human Rights.

The case concerned the unexplained absence of the applicant’s assigned counsel from a Court of Cassation hearing in the criminal proceedings against him.

The Court found that the Court of Cassation had failed to ensure practical and effective respect for Mr Vamvakas’ defence rights. When faced with the manifest default of the assigned lawyer, it should have adjourned the proceedings to clarify the situation rather than dismiss the appeal on points of law as not maintained, especially as the decision was final.

The Court clarifies the scope of the right to effective legal assistance in criminal proceedings

In today’s Chamber judgment in the case of A.T. v. Luxembourg (application no. 30460/13) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 § 3 (c) (right to assistance of counsel) of the European Convention on Human Rights taken together with Article 6 § 1 (right to a fair trial) on account of a failure to provide legal assistance during a police interview,

no violation of Article 6 § 3 (c) taken together with Article 6 § 1 as regards the lack of access to the case file prior to the applicant’s first appearance before the investigating judge, and

a violation of Article 6 § 3 (c) taken together with Article 6 § 1 on account of the lack of communication between the applicant and his lawyer prior to his first appearance before the investigating judge.

The case concerned the failure to provide A.T. with effective legal assistance after he was arrested under a European Arrest Warrant, during both the police interview and his first appearance before the investigating judge.

The Court found in particular that, as regards the police interview, the statutory provisions then in force implicitly excluded the assistance of a lawyer for persons arrested under a European Arrest Warrant issued by Luxembourg. Since the domestic court had not remedied the consequences of that lack of assistance, by excluding from its reasoning the statements taken during that interview, the Court found on this point that there had been a violation of Article 6.

As regards the applicant’s first appearance before the investigating judge, the Court found that the lack of access to the file prior to that hearing had not constituted a violation of Article 6, as that provision did not guarantee unlimited access to the file prior to such an appearance. However, the Court held that the possibility for the applicant to consult his lawyer before that hearing was not sufficiently guaranteed by Luxembourg law. In so far as A.T. had not been able to converse with his lawyer before the hearing in question, the Court thus found a violation of Article 6.

Police violence: Italian criminal law inadequate and not an effective deterrent

In today’s Chamber judgment in the case of Cestaro v. Italy (application no. 6884/11) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights on account of ill-treatment sustained by the applicant, and

a further violation of Article 3 on account of the criminal legislation applied in the present case.

The case concerned events which occurred at the end of the G8 summit in Genoa in July 2001, in a school made available by the municipal authorities to be used as a night shelter by demonstrators.

An anti-riot police unit entered the building around midnight to carry out a search, leading to acts of violence.

The Court found, in particular, that, having regard to all the circumstances presented, the illtreatment sustained by the applicant when the police stormed the Diaz-Pertini school amounted to “torture” within the meaning of Article 3 of the Convention. It noted that the failure to identify the

actual perpetrators of the ill-treatment could partly be explained by the objective difficulty of the public prosecutor’s office in establishing definite identifications but also by a lack of poliçe cooperation.

The Court found that there had been a violation of Article 3 of the Convention on account of illtreatment sustained by Mr Cestaro and of inadequate criminal legislation concerning the punishment of acts of torture which was not an effective deterrent to prevent the repetition of such acts.

After emphasising the structural nature of the problem, the Court pointed out that, as regards the remedial measures to be taken, the State’s positive obligations under Article 3 might include the duty to introduce a properly adapted legal framework, including, in particular, effective criminal-law provisions.