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Recent Case Law of the European Court of Human

Rights Concerning the Protection of Minorities

Leto Cariolou∗

I. INTRODUCTION

This paper is an overview of the case law of the European Court of Human Rights

concerning the treatment of members of minorities that was delivered between

December 2007 and February 2009. It is important to note that the European

Convention on Human Rights does not contain any specific provisions on the

protection of minorities, unlike Article 27 of the International Covenant on Civil and

Political Rights. It does however guarantee individual rights whose effective

protection is essential for the preservation of the distinctiveness and development of

minority groups. It also prohibits in its Article 14 any form of discrimination in the

enjoyment of the rights and freedoms recognized in the Convention on grounds that

include discrimination on the basis of association with a national minority. The

definition of ‘minorities’ falls outside the scope of this paper. The paper will deal with

issues concerning members of groups that have experienced discrimination by the

state or its citizens because of their ethnic, national, racial, religious or linguistic

characteristics.

I will first examine cases concerning serious violations of the Convention occurring in

an armed conflict. I will then discuss cases in which the Court was faced with serious

ill treatment and death of members of ethnic minorities inflicted by the police.

Reference will then be made to cases concerning forced sterilization and eviction of

Romas, cases relating to the protection of religious, political, linguistic minorities as

well as the representation of ethnic minorities in the national electoral system. A fairly

elaborate analysis will be made of two cases concerning equality of opportunity in

education. This will be followed by an examination of cases concerning minorities in

an expulsion context and lastly the protection of property rights of minority ethnic

groups.

∗ Barrister (LLB, LLM, MA) [letocariolou@gmail.com]. The author is grateful to Judge Dean Spielmann for his comments on an earlier draft of this paper.

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II. SERIOUS VIOLATIONS OF THE CONVENTION OCCURRING IN ARMED CONFLICT

A. South Caucasus

Following the cessation of last year’s hostilities in the South Caucasus, Georgia filed

an interstate application against the Russian Federation. In addition, more than 3,300

applications were introduced by South Ossetians against Georgia. In January 2009,

the Court gave notice to the Georgian government of seven applications lodged by

Russian nationals living in South Ossetia.1 The applications concerned the attack by

the Georgian army on 7 August 2008 with heavy artillery and aviation, which

continued for three days. The applicants complain about the death of close relatives

and exposure to life-threatening conditions as a result of the Georgian military

intervention. They further complain that they lost their home and properties and had

been discriminated against because they are Ossetians.

To take an illustrative example, applicant Bekeoeva stated that during the attack she

had stayed in a basement together with her daughter and 40 other women, children

and elderly people without food or water. In her attempt to escape, her daughter was

shot by Georgian soldiers. The Court communicated the case to the Georgian

government, enquiring whether the applicant’s right to life had been violated.

B. Chechnya

The Court has continued to find a series of grave violations of the Convention arising

out of the second Chechen conflict in Russia that began in September 1999.2

In the case of Bantayeva and others v Russia,3 the Court examined the circumstances

of the abduction of two brothers by armed men. The Court found that the applicants

had established a prima facie case that their relatives had been abducted by state

servicemen. Given the government’s failure to submit documents that were in their

exclusive possession despite the Court’s explicit requests to this effect, it could be

inferred that the applicants’ relatives had been abducted and detained during an

1 Bagushvili v Georgia (no. 49671/08); Bogiyev v Georgia (no. 52200/08); Tekhova v Georgia (no. 50669/08); Tedeyev v Georgia (no. 46657/08); Abayeva (no. 52196/08); Bekoyeva (no. 48347/08). 2 Bantayeva and Others v Russia; Idalova and Idalov v Russia, Dolsayev and others v Russia, Sambiyec and Pokayeva v Russia, Abdurzakova and Abdurakov v Russia, Dangayeva and Taramova v Russia, Zakriyeva and others v Russia, Dzhamayeva and others v Russia, Nasukhanova and others v Russia, Tagirova and others v Russia, Ilyasova and others v Russia. 3 Bantayeva and Others v Russia, no. 20727/04, 12 February 2009.

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unacknowledged security operation. Having regard to the Court’s previous findings in

cases concerning disappearances in Chechnya, the detention by unidentified

servicemen without subsequent acknowledgment of the detention was life threatening.

The evidence in the file and the lack of any news from the abducted persons for

several years permitted the Court to establish to the requisite standard of proof that the

abducted were dead.4 In addition, the Court found that there had been an inadequate

investigation of the abduction. On this basis the Court found a violation of Article 2 of

the Convention both in its substantive and procedural sense.

The Court further found that the distress and anguish suffered by the applicants as a

result of the disappearance of their close relatives and their inability to find out what

had happened to them constituted inhuman treatment in breach of Article 3 of the

Convention. However, the Court distinguished the position of the ninth applicant who

was the daughter of one of the disappeared persons and was born seven months after

the disappearance. It was found that she had not suffered distress and anguish

reaching the threshold of Article 3. As a matter of principle, it is perhaps difficult to

justify the Court’s distinction among the children of the disappeared persons. Lastly,

the Court found a violation of Article 5 of the Convention because of the

unacknowledged detention of the disappeared persons without any safeguards.

The applicants withdrew a number of other complaints including a complaint about

discriminatory treatment suffered because of their ethnic origin. The Court saw “no

reasons of a general character” and “affecting respect for human rights” that would

require the further examination of this matter. It is perhaps strange that the applicants

chose to withdraw the Article 14 complaint which seems to be a relatively common

practice in Chechen cases. This is hardly understandable given that there are strong

grounds suggesting that the systematic and serious nature of violations committed by

the Russian authorities to the detriment of Chechen citizens may give rise to a

rebuttable presumption of discrimination that the respondent government ought to

address.5 This would be reinforced by the fact that the Russian government has

consistently denied responsibility in Chechen cases and regularly refused to disclose

the investigation files to the Court. The Court has found the civil and criminal

4 Ibid., at para. 74 and 78. 5 In fact in the case of Timishev v Russia, nos. 55762/00 and 55974/00, 13 December 2005, the Court found a violation of Article 2 of Protocol No. 4 taken in conjunction with Article 14, because of the treatment of an ethnic Chechen living in Kabardino–Balkaria who had been prevented from crossing the administrative border because of an order not to admit “Chechens”.

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domestic remedies in Russia to be largely ineffective in this context and the domestic

investigations to be negligent. An extreme example was the investigation in the case

of Ruslan Umarov, in which the crime scene was inspected four years after the

relevant events.6

The Court did not find a substantive violation of the right to life in the case of

Zubayrayev v Russia7 concerning the death of the applicant’s father allegedly by

Russian forces. The Court found the only available testimony supporting the

applicant’s allegations by the applicant’s mother to be insufficient to show a prima

facie case that the killers had been servicemen. It was significant in this respect that

this testimony was only produced for the purposes of the proceedings before the

Court. In addition, the Court took note that the breakdown of law and order in

Chechnya in 2000 and the violent operation of illegal armed groups. Judges

Loucaides and Spielmann dissented finding the testimony to be overall credible and

the ineffective domestic investigation to be sufficient to shift the burden of proof to

the respondent government.

A very serious case arising out of the hostilities between the Russian forces and

Chechen armed groups was that of Umayeva v Russia.8 The Court found a violation of

Article 2 in both its procedural and substantive aspect because of the lethal use of

force by the Russian forces against the applicant and other civilians who had been

encouraged to evacuate their houses in a humanitarian corridor and had been shot

with artillery fire and shelling. No effective investigation was ever carried out into

this incident, and the Court found that the documents produced by the Russian

government gave the strong impression of “a series of serious and unexplained

failures to act”. The applicant requested under Article 41 of the Convention an order

requiring the authorities to conduct an investigation complying with Convention

standards. The request was refused by the Court, which distinguished the case from

the case of Assandidze v Georgia,9 in which Georgia was ordered to release the

applicant so as to put an end to the violations of Articles 5 and 6 of the Convention.

The Court stated that it was more appropriate to leave it to the respondent government

to choose the means to be employed to discharge their obligations under Article 46 of

6 I have used the example given by P. Leach in “The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights”, 6 European Human Rights Law Review (2008), at 750. 7 Zubayrayev v Russia, no. 67797/01, 10 January 2008. 8 Umayeva v Russia, no. 1200/03, 4 December 2008. 9 [GC], no. 71503/01, ECHR 2004-II.

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the Convention. Judge Spielmann dissented on this point noting that, in his view, the

applicant’s request for an investigation should have been granted given that Article 41

empowers the Court to afford the injured party such satisfaction as appears to be

appropriate.

As a matter of practice, the Court rejects applications for an order for an effective

investigation made under Article 41 of the Convention.10 This has attracted criticism

given that effective redress is largely left to the Committee of Ministers of the Council

of Europe, which is the political body which is solely responsible for supervising the

execution of the Court’s judgments. The Court’s approach allows for considerable

discretion on the part of the domestic authorities which is not always a very effective

manner to ensure reparation to victims. In the Chechen cases, the Court’s reluctance

to order the conduct of an investigation and the shortcomings in the execution of its

judgments have led to the situation where, despite the lapse of several years following

the first Chechen judgments, no military officer was ever prosecuted for crimes that

constituted severe violations of the Convention.11

The Court’s practice in this respect may be contrasted with its earlier pronouncements

that the principle of restitution in intergrum must be given priority in making awards

for reparation to victims of a Convention violation. In its leading judgment on such

awards in the case of Papamichalopoulos v Greece12 the Court stated that:

If the nature of the breach allows of restitutio in integrum, it is for the

respondent State to effect it, the Court having neither the power nor the

practical possibility of doing so itself. If, on the other hand, national

law does not allow—or allows only partial—reparation to be made for

the consequences of the breach, Article 50 empowers the Court to

afford the injured party such satisfaction as appears to it to be

appropriate.

10 See also the case of Medova v Russia, no. 25385/04, 11 December 2008; Kaplanova v Russia (7653/02); Musayeva v Russia (12703/02); Umarov v Russia (12712/02); Lyanova and Aliyeva v Russia (12713/02 and 28440/03) and Albekov v Russia (68216/01). On this point see the case law concerning the reopening of proceedings following the finding of a breach of Article 6: Vladimir Romanov v Russia (41461/02) judgment of 24 July 2008, Polufakin and Chernyshev v Russia (30997/02) judgment of 25 September 2008, Salduz v Turkey [GC] (36391/02) judgment of 27 November 2008; and Panovits v Cyprus (4268/04), judgment of 11 December 2008. 11 P. Leach, “The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights”, European Human Rights Law Review, and K. Koroteev, “Remedies for Human Rights Violations in Chechnya: The Approach of the European Court in Context”, 11 EHRAC Bulletin, at 14. 12 (Application No 14556/89) (1993) 16 EHRR 440.

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The rationale of this is that, in cases in which the nature of the breach does not allow

for complete reparation, the Court is empowered to grant an appropriate award of just

satisfaction. This would support the applicant’s argument that before considering an

award for just satisfaction, the Court ought to examine whether it would be feasible in

the particular circumstances to order an investigation complying with Convention

standards.

A similar request for an investigation into the circumstances of a disappearance was

made by the applicants in the case of Varnava and others v Turkey concerning Greek

Cypriot persons who had disappeared during the Turkish invasion of Cyprus in 1974.

The matter is currently pending before the Grand Chamber of the Court.

III. KILLINGS , TORTURE AND INHUMAN OR DEGRADING TREATMENT OF MEMBERS OF ETHNIC MINORITIES

In the case of Leonidis v Greece,13 the applicant’s 18-year-old son was shot by a

police officer in an attempt to carry out an identity check. The applicant and his son

were Greek nationals of Russian-Pontiac origin. The 18-year-old was chased by a

police officer in plain clothes and an unmarked vehicle while he was peacefully

walking in the old town of Thessaloniki. The police officer caught Leonidis and

immobilized him, Leonidis jabbed him with his elbow when the police officer’s

revolver went off firing the single shot that killed instantly Leonidis.

A preliminary enquiry into the incident was conducted by police officers serving in

the same station as that of the officer who fired the lethal shot. Criminal proceedings

were also instituted against that officer for willful homicide and unauthorized use of

weapons. The police officer was acquitted by four votes to three. A subsequent

administrative enquiry into the incident concluded that the cause of death had been

the victim’s violent assault and the discharge of the officer’s revolver. No disciplinary

proceedings were instituted against the officer. The applicant’s civil claim lodged

with the administrative court was allowed in part because it was found that the use of

a firearm by the officer had been unlawful. The court found that the officer was 70%

responsible for Leonidis’ death because he had acted without showing the necessary

prudence and discipline that was to be expected from the police. The administrative

court of appeal awarded the applicant 80,000 EUR for non-pecuniary damage.

13 Leonidis v Greece, no. 43326/05, 8 January 2009.

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The Court found that the applicant had not lost his victim status because of the award

of compensation by the administrative courts. The possibility of seeking and receiving

compensation in cases of willful ill treatment by the police or unlawful use of force

resulting in death was only one of the measures that were necessary in providing

redress to a victim.14 Although it was accepted that death had not been the result of a

deliberate action, the Court considered that the officer had not taken appropriate care

to ensure that any risk to the life of the applicant’s son had been kept to a minimum.

In this respect it took into account that following the immobilization of the applicant’s

son, the police officer had no reason to keep hold of his weapon, particularly with his

finger on the trigger. The Court also took into account the fact that there was no

appropriate legislative framework and guidelines concerning the use of force by

police officers, who were not adequately trained on the use of forearms. It concluded

that Greece had failed in its duty to avoid real and immediate risk to life in hot-pursuit

police operations and there had been a breach of Article 2. As to the effectiveness of

the domestic proceedings, the majority of the Chamber was satisfied that the

investigations and proceedings had adequately ascertained the circumstances of the

incident. As such, there had been no breach of the procedural obligations under

Article 2.

Judge Spielmann disagreed with the majority in considering that there had been a

breach of the procedural obligations under Article 2 of the Convention given the

“glaring omissions” in the conduct of the investigation of the incident (by officers

attached to the same police station as the defendant police officer), which had resulted

in a poor collection of evidence that had significantly undermined the subsequent

criminal proceedings.

A case of particular interest that perhaps does not, strictly speaking, concern

minorities but nevertheless arose out of the massacre of a group of approximately

20,000 Polish people by the Russians in 1940 in the so-called ‘Katyn Massacre’ is

that lodged by Janowiec and Trybowski v Russia.15 In October 2008, the Court gave

notice of the case to the Russian government, and the applicants’ complaints under

Articles 2, 6 and 13 of the Convention were communicated. The applicants who were

relatives of Polish officers imprisoned and executed by the USSR in the 1940 Katyn

Massacre, complained about the termination of the criminal investigation concerning

14 See para. 46–49 of the judgment. 15 Janowiec and Trybowski v Russia, no. 55508/07 lodged in November 2007.

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the executions of their relatives. The applicants sought access to the case file, but their

request was refused first because they had not been formally recognized as victims

and second because the decision to discontinue the criminal proceedings had been

classified as a state secret, which automatically excluded any access to the file by

foreign nationals.

In the case of Petropoulou-Tsakiris v Greece,16 the Court examined the complaints

made by the applicant, a woman of Roma origin, who stated that she had been kicked

by the police while she was pregnant and that, as a result, she had suffered a

miscarriage. The Court concluded that the evidence before it did not allow it to find

beyond reasonable doubt that the miscarriage had been the result of ill treatment

inflicted by the officer. Accordingly, it found that there had been no substantive

violation of Article 3.

However, the medical evidence and the notification of the applicant’s complaints to

the authorities had created a reasonable suspicion that her miscarriage might have

been caused by excessive use of force. Accordingly, the Greek authorities were under

an obligation to conduct an effective investigation. The only proceedings conducted at

a domestic level were criminal proceedings introduced on the applicant’s initiative.

These were closed because the authorities stated that they could not trace the

applicant. The preliminary enquiry on the applicant’s allegations was conducted by

police officers serving in the same police station as the ones who had participated in

the operation in question. There had been omissions in the assessment of evidence by

the investigating authority, the medical report produced by the applicant had been

neglected, and there had been no forensic examination despite the applicant’s request

to this effect.

The Court noted that it was the investigating authorities’ obligation to take whatever

reasonable steps they could to secure evidence concerning the incident.17 It found

telling that the case had been allegedly closed because the authorities could not locate

the applicant while they had the contact details of her lawyer. Overall, the Greek

authorities had clearly failed to act with reasonable diligence, as a result of which the

16 Petropoulou-Tsakiris v Greece, no. 44803/04, 6 December 2007. 17 This would include a detailed statement concerning the allegations from the victim, testimonies of eyewitnesses, forensic evidence and, where appropriate, additional medical certificates providing an accurate record of the injures and an objective analysis of the medical findings. See also Batı and Others v Turkey, nos. 33097/96 and 57834/00, at para. 134, ECHR 2004-IV (extracts).

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perpetrator of the alleged acts of violence had remained unidentified. Accordingly,

there was a breach of the procedural limb of Article 3.

In addition, the Court found that the attitude of the investigating authorities together

with their failure to investigate possible racial motives constituted discrimination and

was in breach of Article 14 of the Convention. Not only had there been no attempt to

verify whether the behaviour of the officers displayed anti-Roma sentiment, but the

Deputy Director of Police himself had been making tendentious remarks about the

applicant’s Roma origin throughout the investigation. The Court was particularly

struck by the general assertion that complaints raised by Roma were exaggerated and

formed part of their “common tactic to resort to the extreme slandering of police

officers with the obvious purpose of weakening any form of police control”. Such

statements disclosed a general discriminatory attitude on the part of the relevant

Greek authorities, which was clearly unacceptable.

Judge Loucaides disagreed with the majority’s conclusion that there had been no

violation of the substantive aspect of Article 3 of the Convention. He focused his

dissent on the majority’s implicit requirement for corroborative evidence supporting

the applicant’s claim of ill treatment by the police such as eyewitness testimonies. He

criticized this because the majority had failed to consider the applicant’s credibility as

a witness. He added that such an approach was inconsistent with the evidential rules

in many countries that did not require corroborating evidence to prove credible

statements of a victim of ill treatment. This was potentially dangerous in instances of

police prejudice and could in effect be encouraging the use of unacceptable methods

of investigation. In his view, the applicant had stated her complaint in a coherent and

convincing manner, while the majority had essentially found her testimony false

without stating any reason why she should be found not credible as a witness. In

addition, the inadequacy and ineffectiveness of the police investigation did not

amount only to a violation of the procedural aspect of the complaint but also to a

strong corroboration of the same complaint in its substantive aspect.

In Sulejmanov v the former Yugoslav Republic of Macedonia,18 the applicant who was

of Roma origin, was heavily beaten up by the police in the face of accusations that he

had stolen two sheep. He was subsequently convicted of theft, but no mention was

18 Sulejmanov v “the former Yugoslav Republic of Macedonia” , no. 69875/01, 24 April 2008. Another case concerning alleged Roma ill treatment by the Macedonian police and lack of relevant investigation into such events was Dzeladinov and Others v “the former Yugoslav Republic of Macedonia”, no. 13252/02, 10 April 2008.

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made of any injuries sustained by the applicant. He lodged a civil action for

compensation for non-pecuniary damage sustained as a result of police brutality. His

claim was dismissed as ill founded, and it was only accepted that he had been hit with

a stick by the owner of the stolen sheep. The applicant’s request to submit the

evidence of certain witnesses (including an eyewitness and the doctor who had

examined him) was refused as irrelevant.

Having examined the applicant’s statements and other evidence submitted on his

behalf together with the government’s submissions, the Court considered that it was

unable to establish the relevant facts and could not dispute the findings of the

domestic authorities. Accordingly, it could not find beyond reasonable doubt that the

applicant had been subjected to physical ill treatment contrary to Article 3. However,

there was a breach of the procedural requirements of Article 3, given the lack of

sufficient initiative on the part of the prosecutor to investigate the applicant’s

allegations, the delay to reach the latter’s conclusion (which was only issued

following the communication of the application to the respondent government) and

that no serious attempt was made to secure the evidence proposed by the applicant.

What is perhaps lacking from the Court’s reasoning is an enquiry into whether it

could be presumed that the applicant had indeed been subjected to ill treatment given

that he had, in the Court’s view, a credible claim that he had been injured while being

in the control of the police. Such an enquiry would be consistent with the Court’s

standard approach that, in cases in which a person is found to be injured while in

police control, his injuries would give rise to a strong presumption that he had been

subjected to ill treatment.19

In the case of Stoica v Romania,20 a young boy of Roma origin sustained severe

injuries in an altercation between police officers and other persons of Roma origin.

The boy who had had head surgery shortly before the incident was left severely and

permanently disabled. The Court found that the degree of bruising found by the doctor

19 See for instance Matko v Slovenia, no. 43393/98, § 99, 2 November 2006, in which it was stated: “Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” –, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (Labita, cited above, § 121). The Court has held on many occasions that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (Corsacov, cited above, § 55, and Bursuc v Romania, no. 42066/98, § 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (Selmouni, cited above, § 87, and Ribitsch, cited above, § 34).” 20 Stoica v Romania, no. 42722/02, 4 March 2008.

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who had examined the applicant indicated that the injuries had been sufficiently

serious to amount to ill treatment within the scope of Article 3. It confirmed its

previous case law requiring that the standard of proof of “beyond reasonable doubt”

was applicable in its assessment of evidence. It observed that the applicant had been

admitted to hospital with severe injuries soon after the incident and that he had lodged

a complaint of ill treatment against the police. His statements had been coherent and

were supported by other evidence. In inquiring whether the investigations had been

effective, the Court noted that only the testimony of three out of approximately 25

eyewitnesses had been taken, the testimonies were discarded by the military

prosecutor without a rational explanation of his findings on credibility, and the

prosecutor’s conclusions had been contradicted by other evidence in the case. The

Court was also very concerned about references made by police officers to “pure

Gypsy behaviour” and the fact that the investigators had failed to identify anyone

responsible for the applicant’s injuries and thus deprived the applicant of the

opportunity to lodge a criminal complaint against those who had allegedly beaten

him. Overall, there was a clear violation of the procedural limb of Article 3.

As to whether racism had been a causal factor in the conduct of the authorities, the

Court noted that cases with racist overtones required careful consideration by the

authorities, who were under a duty imposed by Article 14 to establish whether ethnic

hatred or prejudice had played a role in the events.21 Despite the fact that the military

prosecutor had concluded that there had been no racial aspect in the incidents, the

Court was struck by the fact that only Roma villagers were considered to be biased

because of their presence in the incident—a ground that would seem to find any

eyewitness to a crime biased!—whereas the police officers’ evidence had been

essentially adopted in its entirety. The Court was further dissatisfied that the

prosecutor had not addressed in any way the ‘stereotypical’ remarks made in the

relevant police report describing the villagers’ alleged aggressive behaviour as

“purely Gypsy”. It found that the incident had at its core racist elements and that the

stereotypical remarks by police officers constituted evidence of their prejudice. The

government had clearly failed to disprove discrimination, and there was a breach of

Article 14.

21 Stoica v Romania, no. 42722/02, § 119, 4 March 2008.

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IV. FORCED STERILIZATION OF ROMA WOMEN

In April 2008, the Court gave notice to the Government of Slovakia the case of V.C. v

Slovakia,22 concerning the alleged forced sterilization of the applicant, who is of

Roma origin. The applicant complained that during the labour of her second child, she

had been subjected to a permanent form of sterilization without her consent. In

particular, she stated that she had been misled by the medical personnel at the last

stage of delivery when she was made to believe that a life-saving surgery was

required. The applicant made reference to a number of publications showing a history

of forced sterilization of Roma women originating under the Communist regime in

Czechoslovakia. The Court communicated her complaint concerning her sterilization

at a public hospital, inquiring whether there was, at the relevant time, a practice of

sterilization, which was inconsistent with Article 3 of the Convention. The Court

further enquired whether the investigation into the case had been effective and

whether there had been a violation of the applicant’s right to respect for her private

and family life contrary to Article 8 of the Convention and her right to found a family

contrary to Article 12. The applicant’s complaint of discrimination contrary to Article

14 taken in conjunction with Articles 3, 8 and 12 was also communicated. The

Slovakian government was requested to submit information concerning sterilizations

in Slovakia and particularly statistical information indicating the number of

sterilizations carried out and the proportion of Roma women concerned.

In April 2009, the Court found a violation of Article 8 in the case of K.H. and others v

Slovakia23 concerning the restriction to the applicants’ exercise of their right of

effective access to information concerning their health and reproductive status. The

applicants were eight Roma women who delivered via caesarean section in hospitals

in eastern Slovakia and were effectively infertile ever since. They suspected that a

sterilization procedure was performed on them during their caesarean delivery by

medical personnel; however, they had been refused access to the documentation

surrounding their treatment.

22 V.C. v Slovakia, no. 18968/07, communicated on 28 April 2008. 23 K.H. v Slovakia, 32881/04, (unreported) judgment of 28 April 2009.

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V. DEMOLITION OF ROMA SETTLEMENTS AND FORCED EVICTIONS

In June 2008, the Court gave notice to the Greek government of the case of Tzamalis

and others v Greece.24 In late 2005, the applicants together with other Roma families

moved to the island of Crete and, intending to settle permanently there, set up their

sheds on an unused road in an area used as a garbage dump which was unfit for

human habitation. The authorities found their prevailing living conditions “unsavoury

and unhealthy”, and criminal complaints were lodged against the Roma for breach of

a relevant sanitary regulation. The criminal complaints were accompanied by the

efforts of the police to convince the Roma to leave the area. The applicants stated that

in June 2006 the police had threatened them with forced eviction. In July 2006 the

police used a bulldozer to demolish seven sheds belonging to the Roma. The Greek

Ombudsman to whom a complaint was made, found that the Roma were often

harassed by local police and had been forced to leave their settlements. Eventually the

applicants were forced to leave Crete.

The Court gave notice of the application to the Greek government, enquiring whether,

because of the manner in which the applicants’ sheds had been destroyed, they had

been subjected to degrading treatment in breach of Article 3 of the Convention. The

Court further enquired into whether there had been a breach of their right to respect

for the home contrary to Article 8 of the Convention. The Court further requested the

Greek government to explain whether the eviction was due to the applicant’s Roma

ethnic origin and whether the authorities had complained about their obligation under

Article 14 to investigate possible racist motives.

In September 2008, the Court gave notice of the application lodged by Winterstein

and others against the French government concerning the forced eviction of the

applicants, who were members of the Traveller’s community, on the basis of town-

planning regulations.25 The applicants used to live in their caravans on abandoned

properties for a considerable number of years (one of them for at least 40 years) and

were left without any alternative possibility for relocation. They complained that their

forced eviction had violated their rights under Article 8 of the Convention 26 and that

they had suffered discrimination under Article 14 of the Convention.

24 Tzamalis v Greece, no. 5469/07. 25 Winterstein and others v France, no. 27013/07. 26 As to whether extremely poor conditions that could be averted by the state’s interference can breach Article 3 of the convention, see Budina v Russia, no. 45603/05, (unreported) 18 June 2009.

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In January 2009, 30 applications lodged against Romania27 concerning the enduring

effects of the violent events described in the judgment of Moldovan and others v

Romania (no.2)28 were communicated. The Romanian government was requested to

provide information about the living conditions of the applicants following the

destruction of their homes and as to any measures taken to provide for the housing. It

is important to note that the Court communicated the complaint concerning the poor

living conditions of the applicants under Article 3 of the Convention.

In February 2009, the court gave notice to the Greek government of the case of Ibishi

and others v Greece.29 The case concerned the eviction of the applicants, who were of

Roma origin, from the settlement in which they lived for more than 10 years. No steps

were taken to address their need for relocation or their subsequent poor living

conditions. The eviction was carried out by the cleaning crew of a private construction

company with bulldozers that leveled the applicants’ sheds. Relevant media reports

suggested that on the day of the eviction the settlement had been turned into a

“battlefield”. The Court requested the Greek government to explain whether the

applicants had been subjected to degrading treatment because of the demolition of

their sheds and subsequent living conditions. The Court further requested the Greek

government respond to whether there had been a violation of the applicants’ right to

respect of their home guaranteed by Article 8 of the Convention and whether they had

access to an effective and accessible procedure that would allow them to voice their

concerns to the relevant authorities and take part in the decision-making process

concerning their eventual relocation. Lastly, the government was requested to explain

whether the competent authorities had taken all the necessary measures to provide the

applicants with a realistic and sustainable solution to their housing predicament.

VI. PROTECTION OF RELIGIOUS MINORITIES

A. Requirement of Removal of Religious Symbols In the case of Dogru v France,30 the Court examined for the first time the reforms

introduced in France following the Stasi Commission’s proposals on the place of

Islam in a republican society. Law no. 2004-228 on secularism, which was enacted in

27 Moldovan and others v Romania, nos. 8229/04 and others, communicated on 15 January 2009. 28 Moldovan and others v Romania (no.2) (41138/98 and 64320/01), CEDH 2005-VII (extracts). 29 Ibishi and others v Greece, no. 47236/07. 30 Dogru v France, no. 27058/05, 4 December 2008. See also the judgment of the Court in the case of Kervanci v France, no. 31645/04, which was delivered on the same date.

15

2004 provided that “[i]n State primary and secondary schools, the wearing of signs or

dress by which pupils overtly manifest a religious affiliation is prohibited.” The

applicant, a Muslim girl who was 11 years old at the relevant time, started wearing a

headscarf in the second term of secondary school. When she went to physical

education and sports classes she was asked to remove it by her teacher who explained

that wearing a headscarf was incompatible with physical education classes. The

applicant repeatedly refused to remove it. By February she was expelled for breaching

the “duty of assiduity” by failing to participate actively in physical education classes.

The government invited the Court to adopt the same conclusion as in the case of Leyla

Sahin v Turkey, because the impugned measure was based on the constitutional

principles of secularism and gender equality. They submitted that the French

conception of secularism respects the principles of the Convention, permitting the

peaceful coexistence of people belonging to different faiths while maintaining the

neutrality of the public arena. Respect for religious freedom did not mean that

manifestations of religious beliefs could not be subject to restrictions. In this case the

school authorities had initiated a dialogue with the applicant before and during the

disciplinary proceedings and the teachers had agreed that she could wear the

headscarf during classes except classes of physical education. The applicant

essentially submitted that her expulsion from school had been disproportionate: she

had proposed to wear a hat or balaclava instead of her headscarf but was still not

allowed to take part in sports classes and the explanation of the refusal offered (on

grounds of safety) had been unreasonable.

The Court repeated its earlier case law that religious freedom did not protect every act

motivated or inspired by a religion or belief.31 Pluralism and democracy are based on

a spirit of compromise that entails various concessions on the part of individuals to

reconcile the interests of the various groups and promote the ideas of a democratic

society.32 A state could limit the freedom of religion by restricting the use of the

Islamic headscarf for the protection of others, public order and public safety. The

Court summarized its case law on this point recalling that compelling a Sikh

motorcyclist to wear a helmet was a justifiable safety measure,33 as were security

31 Dogru v France, at para. 61. 32 At para. 62 of the judgment. 33 X v the United Kingdom, no. 7992/77, commission decision of 12 July 1978, Decisions and Reports 14, p. 234.

16

checks requiring the removal of a turban or veil34 or refusing administrative services

to a student refusing to comply with dress code and wearing the Islamic headscarf.35 It

further recalled that in the case of Leyla Sahin it held that it was legitimate to refuse

admission to classes to pupils refusing to remove the Islamic headscarf on school

premises36 given Turkey’s particular situation where the Islamic headscarf was the

symbol of a political Islam and forces threatening the secular state were becoming

increasingly influential.

Applying its case law, the Court found that the conclusion reached by the national

authorities was not unreasonable.37 In addition, the ban had been limited to the classes

of physical education and was imposed in accordance with the school rules on health,

safety and assiduity, which applied to all pupils equally. It was imposed to protect

secularism in state schools and, although wearing religious signs at schools was not

inherently incompatible with the principle of secularism, it was for the national

authorities to decide whether the applicant had exceeded the relevant limits. The

applicant’s rights had been duly taken into consideration in a thorough balancing

exercise conducted during the disciplinary proceedings. The applicant’s position had

created tension within the school, and the disciplinary process provided for sufficient

safeguards that were apt to protect the applicant’s interests. It was not for the Court to

substitute its own view with that of the disciplinary authorities which were in direct

contact with the educational community and were best placed to evaluate local needs

and conditions.

Overall, the expulsion of the applicant, who could continue her schooling by

correspondence classes, had not been disproportionate. It was crucial in this regard

that the decision complained of had been based on those requirements and not on any

objections as to the applicant’s religious beliefs. The Court found that no separate

issue arose out of Article 2 of Protocol no. 1.

A similar outcome was reached in the case of Mann Singh v France,38 in which the

authorities refused to reissue the applicant’s driving license because he was wearing a

turban in his identity pictures. The applicant was a practicing Sikh who contested the

authorities’ refusal as a violation of his religious rights. The Court found that the 34 Phull v France (dec.) no. 35753/03, ECHR 2005-I, 11 January 2005; El Morsli v France (dec.), no. 15585/06, 4 March 2008, ECHR 2008-…). 35 Karaduman v Turkey, 16278/90, Commission decision of 3 May 1993, DR 74, P. 93. 36 Köse and Others v Turkey (dec.), no. 26625/02, ECHR 2006-...). 37 See para. 73 of the judgment. 38 Mann Singh v France, no. 24479/07, decision of 13 November 2008.

17

measure was very limited in nature and was clearly imposed to protect public order

and security, given that in road controls, the identification of the driver had to be

facilitated to ensure that he was indeed entitled to drive his vehicle.

In addition, in the case of El Morsli v France,39 the Court stated that requests to

remove headscarves and turbans to enable security checks were justified for the

protection of public order. The applicant, a Moroccan national, applied for a visa to

enter France to join her French husband but refused to remove her headscarf at the

ensuing identity check taking place at the French consulate in Marrakesh. The Court

held that the inability of the French authorities to accommodate the applicant’s

request to have the check done by a female agent did not exceed their margin of

appreciation.

Lastly, in Emine Araç v Turkey, the Court held that the civil limb of Article 6 covered

proceedings concerning the right to pursue university studies and therefore the

proceedings lodged by the applicant, a Muslim woman wearing a headscarf, to contest

the refusal of her request to join the university’s theology department because she

could not furnish an identity photograph appearing without her headscarf were

covered by this provision. Having examined the relevant proceedings, the Court found

a violation of Article 6 of the Convention.40

B. Government-Led Information Campaign on Sects

An interesting case was that lodged by Leela Förderkreis E.V. and others v Germany

concerning what was described as “state harassment” of the applicant associations,

which belonged to a movement founded by an Indian mystic.41 The applicant

associations first appeared in Germany in the 1960s and were never well received by

the German authorities. They were the subject of severe public criticism because the

overwhelming public opinion about them was that they posed a danger to adolescent

development and caused various forms of psychological harm. In the 1970s, the

Federal German Government launched a large-scale campaign “designed to increase

public awareness and stimulate critical discussion on the aims and activities of sects.”

It was in the context of giving public warnings for the activities of sects that state

agencies characterized the applicant associations as a “destructive” and “pseudo-

39 El Morsli v France, no. 15585/06, decision of 4 March 2008. 40 Emine Araç v Turkey, no. 9907/02, 23 September 2008. 41 Leela Förderkreis E.V and others v Germany, no. 58911/00, 6 November 2008.

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religious” “psycho-sect” that tended to manipulate their members. By 1984 the

applicants had instituted proceedings seeking an order that the government refrain

from issuing similar statements and relied on their right to freedom of religion. They

maintained that the government had misinterpreted and discredited their teachings by

breaching their obligation of neutrality provided by the German basic law.

The competent administrative court prohibited the government from referring to the

applicants as “destructive” “psycho-sects”. Such characterizations “evoked a negative

connotation of the basic contents of the applicant association’s beliefs” and infringed

their religious freedom. On appeal, that judgment was quashed on the basis that the

right to freedom of religion was not absolute and an interference by the state had to be

accepted where important reasons of public interest were involved. Where suspicion

of a possible violation of the rights of others existed, warnings about the activities of

such sects would be appropriate and necessary under the positive obligations

guaranteeing the right to life and inviolability of a person. On further appeal the

Federal Administrative Court considered that the government had a constitutional

right to inform the public of the activities of such associations and protect human

dignity and the health of its citizens. The right of the government to inform the public

of such hazards included the right to deliver public warnings describing the

applicant’s conduct as dangerous.

The applicant associations then took the matter to the German Federal Constitutional

Court. It was held that the characterization of the applicant associations as

“destructive” and “pseudo-religious” had been unlawful. On the other hand,

describing the applicants as sects had been acceptable and the government had been

allowed to provide the public with adequate information about it. This was so given

the power given to the Federal Government to manage state affairs by the Basic Law,

which did not prevent the state from entering into public and even critical discussion

about the aims and activities of religious groups. The state had to, nevertheless,

restrict itself to neutral terms and respect the principle of proportionality when

imparting information.

The applicant associations complained under Article 9 of the Convention that the

government’s information campaign had been an unjustified interference with their

right to manifest their religion.

The Court observed that, although religious freedom was primarily a matter of

individual conscience, it included the freedom to manifest one’s religion in

19

community with others as well as the right to try to convince one’s neighbour through

preaching.42 The measures taken by the government did not amount to a prohibition of

their activities or of their members’ activities and that the applicants had retained their

freedom of religion and their freedom to manifest their beliefs through worship and

practice. However, it acknowledged that the terms used to describe their movement

were capable of having negative consequences for the applicants. Without

ascertaining the exact extent and nature of such consequences, the Court decided to

proceed on the assumption that the disputed statements constituted an interference

with the applicant’s right guaranteed by Article 9 of the Convention.

As to whether the interference had been prescribed by law, the applicants contended

that the principle of proportionality did not set sufficiently clear limits to the exercise

of the government’s discretion to interfere with freedom of religion in order to protect

other constitutional rights. The Court reiterated its settled case law that an impugned

measure should have a basis in domestic law and that such law must be of sufficient

quality: it must be accessible to the persons concerned and formulated with sufficient

precision to enable them to foresee the consequences that a given action may entail

and regulate their conduct.43 It considered that the government’s information-

imparting role was sufficiently provided for given that the duty of imparting

information on subjects of public concern was one of the governmental tasks directly

assigned to the government by the Basic Law. It also took into account the fact that

according to the Federal Constitutional Court the government did not have an

unfettered discretion when imparting information since statements affecting the very

essence of the right to religion should “be appropriate in relation to the cause for

concern”. Further, the state had to observe neutrality in religious or philosophical

matters, and it was forbidden from depicting a religious or philosophical group in a

defamatory or distorted manner. The Court concluded on this basis that the

interference had been prescribed by law.

The applicants finally argued that in the absence of an attempt on their part to infringe

the rights of others the restriction had not pursued any legitimate aim. In its

assessment of whether the interference had been necessary in a democratic society,

the Court noted that it had to weigh the applicant association’s right to respect for

42 See, for instance, Kokkinakis v Greece, 25 May 1993, Series A no. 260-A. 43 Leela Förderkreis E.V. and Others v Germany, no. 58911/00, § 86, 6 November 2008.

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their freedom of religion and, on the other hand, the duty of the national authorities to

impart to the public information on matters of general concern.

The Court considered that, given the tension caused by the increasing number of new

religious and ideological movements in Germany, the government was justified in

providing explanations to people in an attempt to warn citizens against phenomena it

viewed as disturbing. It found that the power of the state to “preventive intervention”

was consistent with the member state’s positive obligations under Article 1 of the

Convention to secure the rights and freedoms of persons within their jurisdiction.

Such obligations would come into play even in relation to acts or omissions not

imputable to state agents but also to interferences imputable to private individuals.44

The Court observed that the impugned measures did not amount to a prohibition of

the applicants freedom to manifest their religion or belief. It further took note of the

fact that in 2002 the Federal Constitutional Court prohibited the use of the adjectives

“destructive” and “pseudo-religious” and the allegation that members of the

movement were manipulated, as infringing the principle of religious neutrality. The

remaining terms, “sects”, “youth-sects” or “psycho-sects” were used indiscriminately

for any kind of non-mainstream religion, and the government had refrained from

using the term “sect” in their information campaigns after 1998. On this basis, the

Court considered that the government’s statements did not overstep the bounds of

public interest.

Two powerful dissents were expressed by Judge Lazarova Trajkovska and Judge

Kalaydjieva. In her dissenting opinion Judge Trajkovska noted that in her view the

interference at stake was the government’s failure to observe the requirement of

neutrality in the exercise of their powers. Such interference had not been prescribed

by law given that Article 4 of the Basic Law explicitly provided for the duty of state

neutrality. Given that there had been no indication that the applicant’s teachings or

practices undermined the rights of others or constituted a danger to public order the

government’s acts had been disproportionate.

Judge Kalaydjieva observed that the very notion of a state duty to “launch a large-

scale campaign designed to […] stimulate a critical discussion” and “give official

warnings” of “the potential dangers” posed by certain religious groups sounded

familiar to anyone who had experienced such “protection” for decades. She noted that

44 Leela Förderkreis E.V. and Others v Germany, no. 58911/00, § 99, 6 November 2008.

21

she failed to see the active role of the state in a pluralistic society as a participant in a

public discussion of beliefs. In the absence of clearly identifiable risks, such

participation would appear to be in contrast with the principle of state neutrality in

religious matters established in Kokkinakis v Greece.45 She recalled that in that case,

the Court had held that the role of the national authorities was not to remove tension

in society by eliminating pluralism but rather to ensure that competing groups can

tolerate each other. She further pointed out that the majority’s conclusion in this case

departed from previous case law, providing that the right to freedom of religion

“excluded any discretion on the part of the State to determine whether religious

beliefs or the means used to express such beliefs are legitimate”. She found that the

majority’s conclusion was further undermined by the fact that the respondent

government had failed to show that they had ever considered the need to protect

religious pluralism or that any attempt had been made to verify whether the

applicants’ activities had been harmful in any way.

The Court’s judgment constitutes a substantial blow to associations and their

members holding beliefs that are disapproved by the majority. Given that the

government had failed to show the existence of any real danger, it is difficult to justify

the Court’s conclusion that the German state had an obligation to interfere in the

course of public debate in order to warn citizens about phenomena it considered

disturbing!

C. Delay in Attribution of Legal Status to a Religious Association

Different considerations seem to have prevailed in a case against Austria concerning

the lack of legal personality of a Jehovah’s Witness association.46 The Court observed

that the autonomous existence of religious communities was indispensable for

pluralism in a democratic society and was thus an issue situated at the very heart of

the protection afforded by Article 9. It noted that a violation may be established even

in the absence of prejudice or damage suffered by an applicant, given that the

question of whether an applicant had actually been placed in an unfavourable position

or had suffered damage becomes relevant only in the context of the Court’s

examination and possible award of damages under Article 41 of the Convention.47

45 Kokkinakis v Greece, 25 May 1993, Series A no. 260-A. 46 Religionsgemeinschaft der Zeugen Jehovas and Others v Austria, no. 40825/98, 31 July 2008. 47 Religionsgemeinschaft der Zeugen Jehovas and Others v Austria, no. 40825/98, § 67, 31 July 2008.

22

The applicant’s request for recognition as a religious society took approximately 20

years to be granted. Such delay raised concern under Article 9 of the Convention. The

Court considered that Article 9 created an obligation on all state authorities to deal

efficiently with requests of conferment of legal personality, which were relevant for

its purposes. Because the right to an autonomous existence of religious establishments

is at the very heart of the guarantees in Article 9, the authorities’ treatment of the

applicant was an unjustified failure to comply with their obligation to respect the

applicants’ right to freedom of religion.

The Court took note of the special privileges enjoyed by religious societies under

Austrian law and observed that Article 9 imposed an obligation on state authorities to

remain neutral in the exercise of their powers in this domain. It noted that Article 9

required that, if a state sets up a framework for conferring legal personality on

religious groups to which a specific status is linked, all religious groups which so

wish must have a fair opportunity to apply for this status and the criteria established

must be applied in a non-discriminatory manner. Having reaffirmed its previous case

law on discriminatory treatment, the Court noted that a long period of waiting before

such status is granted could hardly be justified in respect of religious groups with a

long-standing existence that are very familiar to the competent authorities. Further,

the example of the treatment by the authorities of another religious community that

was cited by the applicants showed that the respondent state did not treat such

communities on an equal basis. Accordingly, the Court found a breach of Article 14

of the Convention taken in conjunction with Article 9.

D. Expulsion of Religious Missionary

Another interesting case concerning penalization on account of religious belief was

the case of Nolan and K. v. Russia48 in which the applicant, a religious missionary of

a foreign religious organization, whose activities were perceived as harmful to

national security, was challenging his exlusion from Russia. The Court took note of

the fact that the applicant came to Russia in 1994 on an invitation of the Unification

Church, which had been officially registered in Russia. There had been no indication

that he had exercised any activities other than religious and social work as a

missionary. Although the government had maintained that the threat to national

48 Nolan and K. v Russia, no. 2512/04, 12 February 2009.

23

security had been posed by the applicant’s activities and not his “religious beliefs”,

they had totally failed to make reference to any non-religious activities of the

applicant. It found that the applicant’s activities in Russia had been primarily of a

religious nature and therefore amounted to the exercise of his right to freedom of

religion. Having regard to the fact that the applicant was not shown to have engaged

in any other, non-religious activities and given also the Russian government’s policy,

which was recommending caution about the general threat posed by foreign religious

organizations, the applicant's banning from Russia was designed to repress the

exercise of his right to freedom of religion. The ban could not be legitimized by any

plausible legal or factual justification.

VII. FREEDOM OF SPEECH AND PROTECTION OF DIGNITY AND PERSONAL DATA

A. Freedom of Speech

In the case of Balsytė-Lideikienė v Lithuania, the applicant published a calendar

containing various references to he perceived as ethnic cleansing and war crimes

against Lithuanians by the Poles and Jewish. The calendar included a map which

described Poland, the Russian Federation and Belarus as “ethnic Lithuanian lands

under temporary occupation”. The applicant complained about the seizure of copies of

the calendar by security intelligence officers and an administrative warning given by

the district court. The Court took note of the fact that after the re-establishment of

Lithuanian independence questions of national minorities were sensitive and that the

applicant had expressed aggressive nationalism and ethnocentrism and repeatedly

referring to Jews and Poles as perpetrators of genocide and colonizers. The Court

noted that the states should refrain from resorting to criminal proceedings in matters

affecting freedom of speech. It considered, however, that they could in appropriate

circumstances resort to measures of a criminal law nature, for instance to deal with

hate speech.49 In this respect, the Court reviewed the decisions of the domestic courts

and found that they had duly recognized that the present case involved a competition

between the right to freedom of expression and the protection of reputation and rights

of others. They further recognized that the applicants’ right to free speech had to be

exercised in a manner that did not violate domestic law. The Court noted further that

the confiscation measures imposed were relatively serious. However, the applicant

49 See Balsytė-Lideikienė v Lithuania, no. 72596/01, 4 November 2008.

24

had not been fined, which was the penalty provided for the acts she had committed

under the domestic law, and the domestic courts had taken into account the fact that

the applicant had been negligent and had not acted deliberately. Overall, it considered

that the penalty imposed was not disproportionate. The case is interesting given the

careful examination of the domestic court’s findings and reasoning and that the right

of protection of the reputation of a group was taken to be a competing right in this

respect. What is regrettable, however, is the finding that criminal proceedings

contesting the exercise of the right to freedom of expression falling short of an

incitement to violence continue to be treated as compatible with Article 10.

Another case concerning such criminal proceedings and, in particular, the conviction

of criminal libel of the representative of a religious community—the Muslim

community of Lyon in France—were found to breach Article 10 of the Convention.50

B. Protection from Discriminatory Insults

Another interesting case communicated within the period under examination

concerned the publication of a dictionary for pupils, financed by the competent

Turkish Ministry of Culture, that contained entries that were taken by the applicant to

be insulting towards Gypsies.51 The reported metaphorical meanings for “Gypsy” and

“Gypsyness” were “stingy”, “stinginess” and “greediness”. The applicant further took

issue with the meaning attributed to the phrase “becoming gypsy”, which was taken to

be “displaying stingy behaviour”. The applicant, who is a Turkish national of Roma

origin, complained before the competent civil court that the dictionary definitions

constituted an attack on his identity as a Roma and an insult to his personality. His

action was dismissed by the Turkish courts because the impugned entries were found

to be based on historical and sociological realities, and there had been no intention to

humiliate or debase an ethnic group. The case was communicated under Article 8 of

the convention taken in conjunction with Article 14.

The case is interesting because the applicant’s submissions address the limits of

Article 10 of the Convention concerning racially insulting speech. It is expected that

the use of the given publication for educational purposes will be a fairly important

factor in the Court’s balancing exercise. The Court will be expected to address the

very interesting reasoning of the domestic courts as to (i) their finding that the 50 Chalabi v France, no. 35916/04, 18 September 2008. 51 AKSU v Turkey, no. 41029/04, communicated on 30 April 2008.

25

meaning of the words/phrases was justified as a statement of fact (reflecting a

historical reality) or as a comment (reflecting a sociological phenomenon) and (ii) the

importance of the author’s intention before any offence to personality contrary to

Article 8 is established.

C. Data Concerning Racial Origin

On a different note and concerning the handling of personal information revealing an

individual’s racial origin, the Court observed in S. and Marper v the United

Kingdom,52 referring to Article 6 of the Data Protection Convention, that data

revealing an individual’s racial origin belongs to a special category of sensitive data

that attracts stricter protection.53 Given that the processing of DNA profiles allowed

the authorities to assess the likely ethnic origin of the donor and that such techniques

were in fact used in police investigations, retention of DNA profiles became all the

more sensitive and susceptible of affecting the right to private life.54

VIII. FREEDOM OF ASSOCIATION

In the case of Association of citizens Radko and Paunkovski v the Former Yugoslav

Republic of Macedonia,55 the Court found a violation of Article 11 of the Convention

for the dissolution of a newly founded association linking itself to the conduct of a

historical figure that disputed the existence of Macedonian ethnicity and thought of

Macedonians as Bulgarians from Macedonia. The applicants complained under

Article 11 of the Convention that the Constitutional Court’s decision declaring their

association’s articles and programme null and void had violated their freedom of

association in that it led to the dissolution of their association. They submitted that the

Constitutional Court had based its decision on the assumption that the association’s

aim had been the denial of “Macedonian identity”, without providing sufficient

evidence that the association had advocated the use of violence or any antidemocratic

means in pursuing its aims. They maintained that no analysis of the necessity of the

52 S. and Marper v the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, 4 December 2008. 53 “The Court furthermore considered that an individual's ethnic identity must be regarded as another such element (see in particular Article 6 of the Data Protection Convention quoted in paragraph 41 above, which lists personal data revealing racial origin as a special category of data along with other sensitive information about an individual).” 54 See para. 76 55 Association of Citizens Radko and Paunkovski v “the former Yugoslav Republic of Macedonia”, no. 74651/01, 15 January 2009.

26

measure, the existence of a pressing social need and the proportionality had been

undertaken by the Constitutional Court.

The Court accepted that the association’s name was liable to arouse hostile sentiments

given that it had connotations likely to offend the views of the majority of the

population. However, that could not be considered reprehensible or to constitute in

itself a present and imminent threat to public order. In the absence of concrete

evidence showing that the association represented a real threat to the Macedonian

society or the state, it was considered that the association’s name as such could not

justify the association’s dissolution. The Court made reference to the case of Refah

Partisi56 and noted that a state could not be required to wait, before intervening, until

an association had begun to take concrete steps to implement a policy incompatible

with the standards of the Convention and democracy. However, sweeping measures of

a preventive nature to suppress freedom of assembly and expression other than in

cases of incitement to violence or rejection of democratic principles—however

shocking and unacceptable certain views or words may appear to the authorities and

however illegitimate the demands made may be—did a disservice to democracy and

often endanger it. Given that the constitutive acts of the association and its declared

objectives, which were confined to publications, conferences and cooperation with

similar associations, the Court considered that the reasons invoked by the authorities

had neither been relevant nor sufficient. It was crucial in this respect that the

association had been dissolved soon after being formed and had not, in fact, taken any

action. It had been penalized solely because of the exercise of its right to freedom of

expression. The correctness of the association’s ideas was simply irrelevant.

The Macedonian judge, Lazarova Trajkovska, disagreed with the majority of the

Court and considered that the association’s ideas provoked violent behaviour and

disregard of the human rights of others and that, as such, it should not be protected

under Article 10 of the Convention. She stated that “it was difficult to accept that the

association’s policy of denying the national identity of people in their State is in

harmony with the Convention and the values of democratic society”. She noted that

the pressing social need at stake was to protect the right of the majority of citizens of

the Republic of Macedonia to enjoy the human right to self-identification as

Macedonian nationals.

56 Refah Partisi (the Welfare Party) and Others v Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II.

27

It is noted that the submission that the majority of Macedonian citizens have a human

right to self-identification as Macedonian nationals is difficult to be reconciled with

the theory and general principles of the Convention. One may indeed wonder whether

a majority can be said to have human rights as a group which can legitimately be used

to suppress the Convention right of an individual. Judge Trajkovska’s dissent seems

to rest on a “mistake of confusion of society’s rights with the right of members of a

society”57 and to treat as a human right what may be more accurately thought of as a

collective aim. Further, the reasoning of the dissent seems to undermine the

fundamental purpose of the Convention rights to freedom of expression and

association that are intended to protect individuals holding views that are despised by

the majority.

IX. DISCRIMINATION AGAINST RUSSIAN-SPEAKING MINORITIES IN LATVIA

In the case of Andrejeva v Latvia,58 the applicant claimed that her significantly

reduced pension entitlement because of the operation of laws concerning receipt of

retirement pensions that drew a distinction based on nationality constituted

discrimination prohibited by Article 14 of the Convention in the exercise of her right

of property under Article 1 of Protocol No. 1. She was a Russian speaking

“permanently resident non-citizen” in Latvia. The Court noted that the applicant, as a

“permanently resident non-citizen”, was lawfully resident in Latvia on a permanent

basis and that the reduction of her pension entitlement was exclusively based on the

consideration that she did not have Latvian citizenship. It was not disputed that a

Latvian citizen in the same position as the applicant, having worked in the same

enterprise during the same period, would be granted the disputed portion of the

retirement pension. The Court found that the applicant was in an objectively similar

situation to Latvian citizens and that the sole reason for the reduction in her pension

entitlement was the fact that she was not a Latvian citizen. Accordingly, while being

mindful of the broad margin of appreciation enjoyed by member states in the field of

social security, the impugned difference of treatment was not compatible with the

requirements of Article 14 of the Convention.

57 R. Dworkin, Taking Rights Seriously, (London: Duckworth. 1977) at p. 199. 58 [GC], no 55707/00, 18 February 2009.

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X. REPRESENTATION OF MINORITIES IN ELECTORAL SYSTEMS

In the case of Yumak and Sadak v Turkey,59 the applicants, members of the People’s

Democratic Party, had obtained 45.95% of the votes in the parliamentary elections of

3 November 2002 in their province. Because their party did not pass the national

threshold of 10% required for participation in the national parliament, the applicants

were not elected. Of the 18 parties participating in the elections, only two succeeded

in passing the 10% threshold. The results in the elections caused a political upheaval:

45% of the electorate was not represented in parliament and the abstention rate (22%

of registered voters) was almost unprecedented. The applicants relied on Article 3 of

Protocol No. 1 and argued that the imposition of the threshold of 10% in

parliamentary elections interfered with the free expression of the opinion of the

people in the choice of the legislature. They further submitted that the threshold

prevented a large part of the population from expressing their choice regarding its

parliamentary representation, which constituted a serious interference with the right to

participation and served no legitimate aim for the purposes of Article 3 of Protocol

No.1.

The Minority Rights Group International, which participated in the proceedings as a

third party, noted that on account of the threshold it was impossible for a party

operating on a regional basis to be represented in parliament and effectively none of

the Kurdish parties could enter parliament even though in their own regions these

parties regularly achieved high scores. They submitted that the threshold was part of a

deliberate policy of exclusion or at least a policy resulting in exclusion.

The government submitted that the threshold sought to ensure the country’s political

stability by encouraging parties to propose policies accepted more or less generally

throughout the country. Further, the electoral scheme facilitated the election of

independent candidates who were exempted from the threshold and overall the

threshold had positive effects on governmental stability.

The Grand Chamber of the Court noted that the threshold constituted an interference

with the applicants’ electoral rights guaranteed by Article 3 of Protocol No. 1. It noted

that although high thresholds could deprive part of the electorate of representation, the

threshold could also work as a corrective adjustment to the proportional system. In

Turkey the threshold was imposed by the legislature and was grounded on political

59 Yumak and Sadak v Turkey [GC], no. 10226/03, 8 July 2008.

29

and institutional criteria. It was not, as such, incompatible with Article 3 of Protocol

No. 1, which did not, in principle, impose on contracting states the obligation to adopt

an electoral system guaranteeing parliamentary representation to parties with an

essentially regional base irrespective of the votes cast in other parts of the country.

The Grand Chamber then examined the proportionality of the interference: the 10%

threshold was the highest of all the thresholds applied in Europe and was applied in

conjunction with a number of correctives and other safeguards. The applicants could

have been elected had they stood as independent candidates or if their party had

entered an electoral coalition with one of the large parties. The Court was of the view

that small parties were able to avoid the impact of the threshold by putting up

independent candidates. Moreover, the strategy of forming an electoral coalition with

other political groups had also produced tangible results in the elections.

The Court acknowledged the fact that a large part of the electorate was not ultimately

represented in parliament. However, in practice political parties affected by the high

threshold had managed to develop strategies whereby they could attenuate some of its

effects. Special emphasis was placed on the role of the Constitutional Court, which, in

the Court’s view, was vigilant in balancing the principle of fair representation and

governmental stability.60 The Court concluded that although the threshold appeared

excessive and compelled political parties to make use of stratagems which did not

contribute to the transparency of the electoral process, it was not persuaded that the

threshold had the effect of impairing the essence of the applicants’ rights under

Article 3 of Protocol No. 1.

Judges Tulkens, Vajić, Jaeger and Sikuta disagreed with the majority’s conclusion in

a most thorough and persuasive dissent. They noted that the system of a 10%

threshold virtually eliminated the possibility of regional or minority parties entering

the Turkish Grand National Assembly and distorted the essential purpose of a

proportionally system. They noted that it undermined pluralism and parliamentary

criticism and debate and run counter to established principles of the Convention such

as the principle that there can be no democracy without pluralism.61 In practice,

smaller groups were represented in parliament by circumvention, which made the

purpose of the law obsolete. Commenting on the proportionality of the interference,

the majority’s first argument was that the elections of 3 November 2002 took place in

60 Yumak and Sadak v Turkey [GC], no. 10226/03, § 146, 8 July 2008. 61 Freedom and Democracy Party (ÖZDEP) v Turkey [GC], no. 23885/94, § 39, ECHR 1999-VIII.

30

the midst of a crisis caused by a number of different factors, and therefore, it seemed

to accept an exceptional solution for an exceptional situation. Such an argument was

rendered significantly less persuasive by the fact that the threshold was not an

exceptional solution, but had been used since 1983.

As for the majority’s reliance on correctives and other safeguards, the dissenting

judges noted that the majority itself had acknowledged that such safeguards amounted

to “strategems” which political parties were compelled to make use of and which did

not contribute to the transparency of the electoral process. The Court accepted them

on account of their result in practice. Apart from the obvious problem of political

morality that such a position raised, they could not accept that such “stratagems”

could be described as safeguards for Convention purposes. They concluded that the

voting system failed to accommodate the interests and opinions of a large part of the

electorate that identified strongly with a national or other minority and clearly

exceeded the margin of appreciation left to states in this respect.

On 11 March 2008, the cases of Sejdic v Bosnia and Herzegovina62 and Finci v

Bosnia and Herzegovina63 were communicated to the Bosnian government. Sedjic is a

Rom and Finci is Jewish, and they are both citizens of Bosnia and Herzegovina who

hold prominent public positions. On 3 January 2007 Finci obtained a confirmation in

writing by the relevant authorities that he was ineligible to stand for election to the

presidency and the Parliamentary Assembly of Bosnia and Herzegovina because of

his Jewish origin. The Court communicated the case under Article 14 of the

Convention read in conjunction with Article 3 of Protocol No. 1, enquiring whether

the applicants had suffered discrimination arising from the constitutional

arrangements, proving that only those belonging to one of the three constituent

peoples of Bosnia were eligible to stand for election to the Presidency and the

Parliamentary Assembly. Further, the case was communicated also under the

Convention’s new all-embracing anti-discrimination provision, Article 1 of Protocol

No. 12. On 10 February 2009, the Court relinquished jurisdiction in favour of the

Grand Chamber of the Court.

62 Sejdic v Bosnia and Herzegovina (no. 27996/06). 63 Finci v Bosnia and Herzegovina (no. 34836/06),

31

XI. EQUALITY OF OPPORTUNITY IN EDUCATION

The case of Sampanis and others v Greece64 concerned the Greek authorities’ failure

to provide schooling for the applicants’ children and their placement in special classes

taking place in an annex to the main primary school building following

demonstrations demanding that Roma children not be admitted to the school. The

applicants were Greek nationals of Roma origin.

In particular, from the first day that Roma students were admitted to the school, non-

Roma parents began their protests and blockaded the school, demanding that the

Roma children be transferred to another building. The police had to intervene several

times to maintain order and prevent illegal acts from being committed against the

Roma pupils. In response, the applicants’ children were given classes in another

building, and the blockade of the school was lifted. The applicants signed, according

to them, under pressure, a statement drafted by school teachers to the effect that they

wanted their children to be transferred to a building separate from the school.

The applicants argued that their children had been subjected, without any objective or

reasonable justification, to treatment that was less favourable than that given to non-

Roma children in a comparable situation, which constituted discrimination contrary to

the Convention.

The Court, following DH v the Czech Republic,65 had to determine whether a

presumption of discrimination arose in the circumstances of the case. It observed that

it was not in dispute that the applicants’ children had missed a school year and it was

clear that the racist incidents had influenced the decision to place pupils of Roma

origin in an annex to the primary school. The evidence adduced by the applicants

revealed a strong presumption of discrimination. Hence, it was for the Greek

government to show that such difference in treatment had been the result of objective

factors that were unrelated to the ethnic origin of the applicants.

As to the alleged existence of an objective and reasonable justification for the

difference in treatment, the Court noted that there was no doubt that the applicants

had explicitly expressed to the competent school authority their wish to enroll their

children. Given the Roma community’s vulnerability, which required particular

attention, and considering that Article 14 required in certain circumstances a

difference of treatment in order to correct inequality, the competent authorities should 64 Sampanis and others v Greece, 5 June 2008. 65 DH v the Czech Republic (application no. 57325/00) 47 EHRR 3.

32

have facilitated the enrolment of the Roma children even if some of the requisite

administrative documents had not been available. As regards the special classes, the

Court considered that the authorities had not adopted a single, clear criterion in

choosing which children to place in the preparatory classes. The government had not

shown that any suitable tests were ever given to the children concerned in order to

assess their capacities or potential learning difficulties. In addition, although the

declared objective of the preparatory classes was for the pupils concerned to attain the

right level so that they could enter ordinary classes, the government had not cited any

examples of pupils who, after being placed in a preparatory class, were subsequently

admitted to an ordinary class or any records of the conduct of an appraisal in their

capacity to follow ordinary classes.

The Court stressed the importance of introducing a suitable system for assessing the

capacities of children with special learning needs, to monitor their progress and

provide for their placement in special classes on the basis of non-discriminatory

criteria. In view of the racist incidents provoked by the parents of non-Roma children,

the placement in special classes taking place outside the main building would have

given the applicants the feeling that the authorities were trying to segregate their

children. As to the applicants’ consent to the transfer of their children to a separate

building, the Court was not satisfied that the applicants, as members of an

underprivileged and often uneducated community, had been able to assess all the

aspects of the situation. In any event, a waiver in this respect could not be accepted,

given the importance of the prohibition of racial discrimination.

The Court concluded that the conditions of school enrolment for the applicants’

children and their placement in special preparatory classes—in an annex to the main

school building—resulted in discrimination against them. Accordingly, there had been

a violation of Article 14 of the Convention, taken together with Article 2 of Protocol

No. 1, in respect of each of the applicants.

In the case of Oršuš v Croatia, the applicants were 14 Croatian nationals of Roma

origin who complained of segregation into Roma-only classes at primary school.

During their elementary schooling, the first nine applicants attended both Roma-only

and mixed classes before leaving school at the age of 15; the remaining five

applicants attended entirely Roma-only classes because, according to the government,

they had scored very low marks in tests on knowledge of the Croatian language. Most

33

of the applicants were provided with additional classes in Croatian and, generally, had

poor attendance.

In 2002 the applicants brought proceedings complaining of racial discrimination in

their exercise of their right to education. Their complaints were rejected because the

reason for their placement in Roma-only classes had been their poor command of the

Croatian language. On appeal to the Croatian Constitutional Court it was observed

that the criteria for the formation of the special classes had been adequate knowledge

of the Croatian language and not the pupils’ ethnic origin. This was assessed in each

case by committees of qualified experts. There was no reason to question the findings

and expert opinions of the competent experts and there was no evidence showing that

such placements were based on grounds of ethnic origin. The classes were not

established for the purpose of racial segregation, but to provide children with

supplementary tuition in the Croatian language and eliminate the consequences of

social deprivation. The statistical data on the number of Roma children placed in

separated classes in the particular year were not sufficient to indicate in themselves a

discriminatory practice: approximately 40% of Roma children in a particular county

were placed in regular classes. Lastly, the findings of the lower court, that it would be

only in exceptional cases that pupils could be transferred to a regular class, were

overruled: there was no objective or reasonable justification for not transferring pupils

who had attained proficiency in Croatian to regular classes.

The applicants complained under Article 3 about the racial segregation they had

suffered, which amounted to degrading treatment in view of their tender age and

vulnerable position as members of a particularly disadvantaged minority group. The

Court responded that it did not exclude in principle that treatment based on prejudice

against an ethnic minority may fall within the ambit of Article 3. However, the

feelings of inferiority or humiliation triggered by discriminatory segregation based on

race in the field of education could breach Article 3 in exceptional circumstances.

The applicants had failed to submit sufficient evidence that there was a prevalent

prejudice against them attaining the level of suffering necessary to fall within the

ambit of Article 3. Their arguments were of a general nature and speculative, and their

placement in special classes was not done with intent to humiliate or debase them or

with any lack of respect for their human dignity. In addition, the Court took note of

the applicants’ participation in extracurricular activities in mixed groups. It held that

34

the applicants had failed to establish that they had been subjected to ill treatment

within the meaning of Article 3.

The applicants’ also complained that they had been denied their right to education and

had been discriminated against in this respect. The Court proceeded on the basis of a

different analysis than that adopted in DH v The Czech Republic. It first established

that there had been difference in treatment, given that Roma children were placed in

separate classes in elementary schools. The Court took note of the lack of clear

procedures on transfers from special classes to regular classes but found the Croatian

practice to be less objectionable than the Czech practice analyzed in DH. The Court

accepted the government’s submission that the difference in treatment was because of

the applicants’ lack of adequate knowledge of the Croatian language. It did so on the

basis of the government’s reliance on the results of relevant tests and because the

applicants did not dispute that at the time of their enrolment they had insufficient

command of the Croatian language. Given this finding, namely that the difference in

treatment was not explicitly imposed on account of the children’s race, a wider

margin of appreciation was held to apply. The Court then examined the relevant

practice: it was only applied in four elementary schools and, taking into account the

percentage of Roma attending a special class in three of these schools (which was

73%, 36% and 46%, respectively), it concluded that there was no general policy to

automatically place Roma students in special classes. It therefore found unanimously

that the difference in treatment was based on their lack of knowledge of the Croatian

language and not their race or ethnic origin and that it was, as such, justified.

Although the Court presented the case as one in which the national authorities had

taken steps of affirmative action to correct discrimination, the following points seem

to be rather problematic:

– The Court focused its assessment on whether at the time of their enrolment in

primary school Roma children were legitimately placed in special classes, instead of

examining whether throughout their education they had been discriminated against;

– The Court’s reliance on the fact that the applicants had not requested their transfer

to a mixed class or objected to their placement in a Roma-only class placed a grave

burden on the applicants, given the lack of clear procedures on such transfers and the

fact that the applicants were members of a particularly vulnerable minority;

35

– Despite the finding about the lack of transparent procedures on transfers that

ultimately depended on the class teacher’s discretion,66 the Court merely noted that it

would have been preferable to have clear standards and procedures; a proposition that

would appear to be inconsistent with the earlier pronouncements in DH that imposed

a duty to have simple and transparent procedures on issues concerning a particularly

vulnerable minority;67

– It is a significant blow to the protection offered by the principle of indirect

discrimination to hold that where a measure does not explicitly draw a difference on

racial grounds a wider margin of appreciation ought to apply (see para. 66 of the

chamber’s judgment);

– The Court did not address whether Roma students had a realistic possibility of

joining a normal class and access the same opportunities as other students.

Perhaps there has been sufficient evidence in the case file showing that the difference

in the applicants’ education had been justified. However, overall, the Court seems to

have relied on the lack of discriminatory intent on the part of the domestic authorities,

which flies in the face of the strict test of indirect discrimination set out in D.H.

Whereas in that case the Court was prepared to examine the effect of the neutral

measure at issue, here it was content to find it justified because it was neutral (the

difference based on insufficient language skills) and because there was no

discriminatory practice at the time of enrolment (which failed to address the effect of

the practice to the applicants’ general education following their enrolment).

In addition, the Court seems to have been content with the proposition that racial

segregation may, in exceptional circumstances, be incompatible with the protection

against degrading treatment offered by Article 3 of the Convention. The Court’s

position on segregation is perhaps disappointing given that one would have thought

that segregation constitutes, in principle, degrading treatment and an affront to human

dignity.

66 See para. 65 of the judgment. 67 At paragraphs 206-207 of D.H. v the Czech Republic, the court stated that “whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation […] The facts of the instant case indicate that the schooling arrangements for Roma children were not attended by safeguards […] that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class.”

36

On 1 December 2008, the case was referred to the Grand Chamber at the applicants’

request. They contested the Chamber’s finding that their placement in separate classes

was made because of their insufficient knowledge of the Croatian language. They

relied in this respect on school records showing that a significant number of them had

actually scored quite high marks in Croatian language tests and complained about the

school management’s excessive discretion in deciding which children should be

assigned to special classes. They further disputed that the curriculum in the special

and mixed classes had been the same and that the transfer from Roma-only to mixed

classes had been a regular practice, noting that five of the applicants had never been

transferred to a mixed class and six of them had only been transferred to a mixed class

following the introduction of their application with the Court. The matter is currently

pending.

XII. EXPULSIONS AND EXTRADITIONS

Another interesting case concerning the protection of members of the Sri Lankan

Tamil minority was the case of NA v the United Kingdom.68 This was the lead case of

the Court on the proposed expulsions to Sri Lanka of Tamil asylum seekers by the

United Kingdom government. The Court had applied Rule 39 of its Rules and issued

interim orders requesting the United Kingdom government not proceed with the

removal of a significant number of Tamil applicants.

The Court found that on the basis of the information available before it, there was

systematic torture and ill treatment by the Sri Lankan authorities of Tamils who were

of interest to them in their efforts to combat the Liberation Tigers of Tamil Eelam

(LTTE). It found that the protection of Article 3 would become relevant when an

applicant member of the Tamil minority was going to be removed to Sri Lanka and he

could establish that there were serious reasons to believe that he or she would be of

sufficient interest to the authorities in their efforts to combat the LTTE as to warrant

his detention and interrogation.

The Court observed that a general situation of violence would normally entail a

violation of Article 3 only in the most extreme cases in which there would be a real

risk of ill treatment simply by virtue of an individual being exposed to such violence

on return. In such cases, the Court acknowledged that the protection of Article 3

would come into play when an applicant establishes that he is a member of a group 68 NA. v the United Kingdom, no. 25904/07, § 131, 17 July 2008.

37

systematically exposed to ill treatment and can show the existence of the practice of

such ill treatment. The applicant would not be required to show further distinguishing

features of his circumstances.

Having examined all the evidence at its disposal, the Court accepted that there was no

general risk to all Tamils returning to Sri Lanka. The risk was mainly for Tamils

“with certain profiles” and as such it was not incompatible with Article 3 to require

Tamils challenging their removal to Sri Lanka to show the existence of further

distinguishing features which would place them at real risk of ill treatment. In

carrying out its assessment of the risk posed to a particular individual, a list of “risk

factors” as identified by the domestic Asylum and Immigration Tribunal could be

used.69 It emphasized in this respect that a real risk of ill treatment could be

established by taking individual factors cumulatively in the context of a situation of

general violence in the country of destination.

The Court concluded in the circumstances of the case that there was a real risk that the

authorities of the Sri Lankan government would be able to access the records on the

applicant’s past detention and that he could be detained and strip-searched, which

could lead to the discovery of his scars. On this basis, the Court found that there were

substantial grounds for finding that the applicant would be of interest to the Sri

Lankan authorities and as such there would be a violation of Article 3 if the applicant

were to be returned.

Another noteworthy challenge to a proposed expulsion decided during the period

under examination concerner the removal from Sweden to Iraq of a Christian Iraqi.70

In dismissing the application, the Court took note of the fact that even if the applicant

would not manifest his religious beliefs openly, it was likely that his religious

affiliation would become known to others because of the everyday use of his identity

card which explicitly noted his religion. The Court took note of several incidents

directed against Christians in Iraq. However, given that Christian congregations were

still functioning in Iraq and that the Iraq government and Islamic groups had

condemned all attacks against Christians, it appeared that the reported attacks had

been carried out by individuals, rather than by organized groups. Given that the Iraqi

government had even intervened to ensure the safety of the Christian minority and

that there was no state-sanctioned persecution of Christians, the Court considered that

69 LP (LTTE area-Tamils-Colombo-risk?) Sri Lanka CG [2007] UKAIT 00076. 70 F.H. v Sweden, application no. 32621/06, 20 January 2009.

38

the applicant could seek the protection of the Iraqi authorities if he felt he was under

threat. As such, there was no real risk that he would face persecution or ill treatment

on the basis of his religious affiliation. Judge Power, joined by Judge Zupančič,

disagreed with the majority of the Court. With regard to the Court’s assessment of

risk based on the applicant’s religious affiliation, she noted that the Court wrongly

concluded that the applicant could seek protection from the Iraqi authorities given the

relevant objective evidence suggesting an increase in violence and threats against

Christian in Iraq and reporting that 11,000 Christians had fled Iraq.

XIII. PROPERTY RIGHTS OF ETHNIC MINORITIES

In Preussische Treuhand GMBH & Co v Poland, the Court found inadmissible the

complaint about the expropriation of private property of ethnic Germans located on

territories entrusted to Poland after World War II and the subsequent failure to enact

rehabilitation or restitution laws. The applicants were persons who lived in the

provinces which were included in the territory of Poland after the defeat of Germany,

when the border between those two states was drawn along the Oder–Neisse line. In

the beginning of 1945 the German Nazi authorities, in connection with the Soviet

offensive, ordered the evacuation of German civilians, including some of the

applicants, who had to abandon their homes in those regions and head for the western

provinces of the Reich. In 1945 to 1946, the Polish state enacted a series of laws

designed to take over the German state property and to expropriate the private

property of all Germans, including the applicants, in the territories east of the Oder–

Neisse line. These laws were enacted following the Yalta Conference, the Potsdam

Agreement and the Three Powers’ undertakings in respect to war reparations for

Poland, which were satisfied from the German-owned assets located in Polish

territory. During that period, some of the applicants and their families who had not

been evacuated were expelled from their homes by the Polish authorities. As regards

the applicants who fled because of the imminent approach of the victorious Red

Army, the Polish state could not be held responsible for the alleged acts of violence

and expulsion, because at that time, it had had no de iure or de facto control over

those still German territories, gradually taken over by the Soviet troops, and had only

been entrusted the administration of the regions east of the Oder–Neisse line under the

provisions of the Potsdam Agreement of 1945.

39

In so far as the application could be regarded as directed against Poland, the

applicants’ complaint was based on specific events, i.e., individual acts of violence,

expulsion dispossession and seizure or confiscation of property which had taken place

mostly in 1946 and which, if assessed as a whole, could not be regarded as other than

instantaneous acts. The Loizidou71 case was distinguished because the inherent

illegitimacy of measures stripping the applicant of her ownership rights had derived

from the fact that the expropriation laws in question could not be attributed legal

validity for the purposes of the Convention as because they had emanated from an

entity that was not recognized in international law as a state and whose annexation

and administration of the territory concerned had no international law basis. In the

instant case, the situation was different. There could be no doubt that the former

German territories on which the individual applicants had their property had been

lawfully entrusted to the Polish state under the provision of the Potsdam Agreement

and that, subsequently, the Polish–German border as referred to in that agreement had

been confirmed by a sequence of bilateral treaties concluded between Poland and two

former separate German states, and finally between Poland and the reunified Federal

Republic of Germany. Consequently, the applicants’ arguments as to the existence of

international law violations entailing inherent unlawfulness of the expropriation

measures adopted by the Polish authorities and the continuing effects produced by

them up to the present date had to be rejected. In addition, following the confiscation

of the applicant’s property, the Polish state had not enacted any restitution or

compensation laws providing for restoration of German property expropriated under

the previous regime that would generate a new property right eligible for protection

under Protocol No. 1. In conclusion, the Court found that there had been no

continuing violation of the Convention that could be imputed to Poland and that the

Polish state had no duty under Article 1 of Protocol No. 1 to provide redress for

wrongs or damage caused prior to their ratification of the Convention.

In June 2008 the Court communicated two applications against Azerbaijan concerning

the home and properties of ethnic Armenian nationals which are occupied by Azeri

forces. The applicants fled their village in 1992 when the Nagorno–Karabakh conflict

escalated into full-scale war and have been unable to return ever since. 72

71 Loizidou v Turkey (Merits) (1997) 23 EHRR 513 and follow-up judgments. 72 Sargsyan v Azerbaijan (no. 40167/06) and Arakelyan v Azerbaijan (no. 13465/07).

40

XIV. MINORITY LANGUAGES

In September 2008, the case of Birk-Levy v France was communicated. It concerned

the obligation to use the French language in the French Polynesian Assembly. The

applicant, who is an elected member of the French Polynesian Assembly, was

challenging the French Conseil D’ Etat’s decision to render void a part of an internal

rule of the assembly that allowed the possibility for members of the assembly to use

the Tahitian language or one of the Polynesian languages. The case was

communicated under Articles 10, 11 and 14 of the Convention.

XV. CONCLUSION

Within the period under examination, the Court continued to build its substantive

body of case law addressing the severity of the crisis in Chechnya. However, it did

not as yet consider whether the systematic nature of the serious violations found in

this context ought to give rise to a presumption of discrimination against Chechens by

the Russian authorities. In addition, it has regrettably denied ordering, under Article

41 of the Convention, the conduct of an effective investigation into disappearances

and other incidents giving rise to serious Convention violations.

The Court had the opportunity to condemn stereotypical remarks made by state

authorities about “Gypsy behaviour”. More importantly it treated such remarks as

evidence of systemic prejudice and structural discriminatory attitudes against Romas

in a number of member states. It examined a number of cases in which members of

minorities lost their life or suffered serious ill treatment by the police. On one

occasion, it criticized the lack of a regulatory framework dealing with the use of

firearms by police officers and their insufficient training in this regard. The Court

further communicated the very serious complaints concerning the alleged forced

sterilization of Roma women in Slovakia and a number of applications against various

member states concerning evictions and demolitions of Roma settlements and the

poor living conditions in which the applicants were forced to subsequently live in. In

one set of these cases, the Court enquired whether the poor living conditions that the

applicants were forced to live in involved a violation of their rights under Article 3 of

the Convention forbidding inhuman or degrading treatment.

In the case of Leela Förderkreis, the Court adopted a regrettably restrictive approach

towards the protection of members of minority religions by accepting the

41

government’s campaign to inform the public about the alleged dangers posed by the

mere existence of such groups to the satisfaction of mainstream churches. On the

other hand, in the case of Radko, the Court declined to accept what it found to be

“sweeping measures of a preventive nature” seeking to suppress the applicant’s right

to freedom of association and expression without any attempt on its part to incite to

violence or other threatening behaviour.

In addition the Court had ample opportunity to apply its principles on indirect

discrimination set out in the case of D.H. v Czech Republic. In the case of Sampanis,

it found the Greek authorities response to anti-Roma demonstrations demanding that

no Roma children be admitted to school discriminatory. They had placed Roma

students in “special classes” taking place at an annex to the school building. However,

the Court found that it is only in exceptional circumstances that segregation on the

basis of racial origin would constitute inhuman or degrading treatment contrary to

Article 3. The different approach adopted on these issues in the case of Ursus is

currently being reconsidered by the Grand Chamber. Lastly, in the context of

expulsions, the Court accepted that in certain circumstances, in which the context of

generalized violence in the receiving state reaches a certain high threshold, the

protection of Article 3 would come into play when an applicant establishes that he is a

member of a group that has been systematically exposed to ill treatment without

further distinguishing his circumstances.