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Seminar to mark the fifth anniversary of the coming into force of Protocol No. 16
On 13 October the ECHR organised a half-day Seminar Judicial dialogue through the advisory opinion mechanism under Protocol No. 16 to mark the fifth anniversary of the coming into force of Protocol No. 16 and the advisory opinion mechanism. The Seminar gathered together superior court presidents from many Council of Europe member States (including from those States which have not ratified the Protocol) to take stock of how the mechanism is operating in practice and reflect on how it could develop in the future.
- Programme
- Speech by Marija Pejčinović Burić, Secretary General of the Council of Europe
- Speech by Tim Eicke, Judge at the ECHR
- Summary by Enrico Albanesi, Professor of Constitutional law, University of Genova
- Speech by Pauliine Koskelo, Judge at the ECHR
- Speech by Christophe Soulard, First President of the French Court of Cassation
Chamber News
In the case of Plechlo v. Slovakia, the Court held that there had been a violation of the right to respect for private and family life.
The case concerned the tapping and recording of some of the applicant’s telephone conversations in the context of a criminal investigation into suspected corruption within the National Property Fund (the country’s privatisation agency). At the time, the applicant was a top-ranking official of the NPF; the criminal investigation had not however directly concerned him. Subsequently, in 2016 some of the intercepted material was included in the file of another criminal investigation into mismanagement of assets and in which the applicant was one of the primary suspects.
The Court found that the applicant, as somebody randomly affected by telephone-tapping measures, had not benefited from the requisite safeguards with regard to the recording, storage and continued retention of the intercept material.
In the case of Pająk and Others v. Poland, the Court held that there had been a violation of the right of access to a court in respect of all applicants, and a violation of the prohibition of discrimination taken in conjunction with the right to respect for private life in respect of the three applicants who had lodged complaints under those provisions.
The case concerned four judges who complained about legislative amendments that had lowered the retirement age for judges from 67 to 60 for women, and to 65 for men, and had made the continuation of a judge’s duties after reaching retirement age conditional upon authorisation by the Minister of Justice and by the National Council of the Judiciary (“the NCJ”).
The Court found that the decisions taken in respect of each applicant by the Minister of Justice and by the NCJ had constituted arbitrary and unlawful interference, in the sphere of judicial independence and protection from removal from judicial office, on the part of the representative of executive authority and the body subordinated to that authority. It concluded that the applicants’ right of access to a court had thereby been impaired in its very essence.
In the case of Stoianoglo v. the Republic of Moldova, the Court held that there had been a violation of the right of access to a court.
The case concerned a Prosecutor General’s alleged inability to appeal against his suspension, which had been triggered by criminal proceedings that had been brought against him.
The Court found that the applicant had not been afforded any form of judicial protection in relation to his suspension, which had prevented him from performing his duties and had deprived him of the corresponding salary for more than two years.
In the case of Locascia and Others v. Italy, the Court held that there had been several violations of the Convention.
The case concerned the crisis over refuse collection, treatment and disposal in the Campania region and pollution from a landfill site. The Court found that pollution from refuse had adversely impacted the applicants’ personal well-being during the waste crisis from 1994 to 2009 and that that situation had continued as concerned the landfill site, which the Italian authorities to date have still not secured or cleaned up.
Delivered Judgments and Decisions
Grand Chamber News
The Court has accepted the referral to the Grand Chamber of the cases Burando Holding B.V. and Port Invest B.V. v. the Netherlands, Janssen de Jong Groep B.V. and Others v. the Netherlands and Ships Waste Oil Collector B.V. v. the Netherlands.
The three cases concern the transmission of data, lawfully obtained in a criminal investigation, to another law-enforcement authority, the Competition Authority, that used those data in an investigation into the applicant companies’ involvement in price-fixing.
The Court has also decided to reject requests to refer 16 other cases.
In the case of Yüksel Yalçınkaya v. Türkiye the Court held that there had been violations of the right to a fair trial, to no punishment without law and to freedom of association.
The case concerned the trial and conviction of the applicant for membership of the FETÖ/PDY. The trial took place in the aftermath of the attempted coup d’état of 15 July 2016.
The problems which had led to findings of violations were systemic in nature. The ECHR held that Türkiye had to take general measures as appropriate to address those systemic problems, notably with regard to the Turkish judiciary’s approach to Bylock evidence. There are currently approximately 8,500 applications on the Court’s docket involving similar complaints under the right to a fair trial and/or to no punishment without law.
Hearings
The date for the Grand Chamber hearing in the case of Ukraine v. Russia (Crimea) (nos. 20958/14 and 38334/18) has been postponed from 8 November 2023 to 13 December 2023.
The case concerns Ukraine’s allegations of a pattern (“administrative practice”) of violations of the European Convention by the Russian Federation in Crimea beginning in February 2014.
Decisions
The Court has ruled on 21 applications against Norway concerning children taken into public care. It declared 12 of the applications inadmissible, while it held in the nine others that there had been violations of the right to respect for private and family life.
The applications restated guiding principles in respect of children taken into public care. Notably, States had wide discretion when deciding on taking a child into care, but the Court had to carry out “stricter scrutiny” of any further measures taken, such as restricting contact rights. In particular, adoption had to be justified by “exceptional circumstances” and the overriding requirement of the child’s best interests.
Communication of cases
The Court has communicated to the Government of Hungary the application Karsai v. Hungary and has asked them to submit their observations on its admissibility and merits.
The case concerns the right to a self-determined death of a person affected with amyotrophic lateral sclerosis (ALS), a type of motor neurone disease. Given the nature of the case, the Chamber has decided to grant the application priority under Rule 41 of the Rules of Court.
Other News
On 25 September 2023 the Plenary Court approved an updated version of the Guidelines on the implementation of the advisory opinion procedure under Protocol No. 16 to the European Convention on Human Rights. The changes mainly reflect aspects of the practice developed by the ECHR under the Protocol. To date the Court has delivered six advisory opinions, with one opinion pending.
On 19-20 October 2023, President Síofra O’Leary paid an official visit to Italy. On 19 October she was received by Sergio Mattarella, President of the Republic. On the same day, President O’Leary also met Silvana Sciarra, President of the Constitutional Court. On 20 October, she participated in a conference at the Accademia dei Lincei on "The Judge and the Rule of Law". Other keynote speakers included President Sciarra and Koen Lenaerts, President of the Court of Justice of the European Union. President O’Leary was accompanied by Raffaele Sabato, judge elected in respect of Italy, and Stefano Piedimonte Bodini, Head of the Private Office of the President.
On 18 October 2023 a delegation from the Supreme Court of Sweden, headed by Gudmund Toijer, Chief Divisional Justice, paid a working visit to the Court where it was greeted by President Síofra O’Leary and took part in roundtable discussions with judges of the Court and members of the Registry.