I have relaunched my German blog on the ECHR. You can find it here
Judicial review of seizures – Prezhdarovi v Bulgaria
In Prezhdarovi v Bulgaria, the European Court of Human Rights has reiterated the importance of an effective judicial review of seizures of assets. It stated that a retroactive review by a judge after a seizure may in principle counterbalance the failure to obtain a judicial warrant prior to the seizure. However, this requires the retroactive scrutiny by a judge to provide sufficient safeguards against arbitrariness.
The applicants had established a computer club. Customers could use computers and play computer games installed on them for a fee. The first applicant, who was the owner of the club, paid licensing fees to the companies owning the software and computer games. In 2004, the contract expired and the first applicant failed to renew it.
Shortly after, a criminal complaint was lodged on the grounds that the applicants allegedly continued to use the software and sold illegal copies of computer games. The prosecutors ordered the police to investigate whether software was used and distributed in the applicant’s club in breach of the criminal procedure code. The prosecutor also ordered the police to secure evidence by seizing computers should the investigation lead to the conclusion that software was used and sold in an illegal manner.
Police officers visited the premises in which the applicant had run the computer club. The police officers ascertained that computer games were installed on the computers. There were people present and the cash till was open. When the applicants failed to produce invoices, receipts or other documentation proving that they were using the games legally, the police officers concluded that there was a sufficient suspicion of illegal activities and seized the computers.
Pursuant to article 135 of the Bulgarian Criminal Procedure Code as it stood at the relevant time, in principle a warrant was required for seizures. As an exception, police officers could carry out seizures in pressing circumstances, in which case the seizure had to be approved by a judge within 24 hours.
On the same day, a judge approved the seizure. The judge gave a brief description of what had happened. He pointed out that there had been pressing circumstances and that an immediate seizure had been the only available means to secure the evidence.
One day later, the first applicant lodged an application with the District Court requesting not to approve the seizure of the computers. He pointed out that there had been no pressing circumstances. He also claimed that the computers contained personal letters and personal information about friends and clients. The request was rejected as inadmissible on the grounds that the seizure had already been approved by the court and that this decision was not subject to appeal.
Both applicants filed a request with the prosecution to return the computers. The stated that the computers contained personal data and that they needed them to run their business, a typewriting service. The prosecutor denied the motion.
The first applicant sought judicial review pointing out that the computers contained personal data. The competent court rejected the request. It pointed out that the computers were currently being examined by experts and could not be returned. The Court did not deal with the applicant’s argument that the computers contained personal information and were needed for his business.
The applicant was convicted for illegal distribution of computer games.
The European Court of Human Rights scrutinized the seizure and the retention of the computers in light of article 8 ECHR (right to private life).
It was not in dispute between the parties that the seizure and retention of the computers amounted to an interference with the right to private life. Consequently, the European Court of Human Rights went on to examine whether the interference had been based on a law. The Court reiterated that this requirement did not only refer to the existence of a basis in domestic law but also entailed qualitative standards for the law in question. In particular, the provision on which the interference was based had to be accessible, sufficiently clear to make the scope of its application foreseeable and it had to be in keeping with the rule of law.
The European Court of human rights examined whether the legal provision governing the seizure had been compatible with the rule of law. It underscored that this requirement meant, in the context of seizures, that the domestic law afforded sufficient safeguards against arbitrariness.
The Court expressed doubts that there had actually been pressing circumstances which permitted the immediate seizure pursuant to Bulgarian law. It pointed to the fact that the visit to the premises of the applicants’ business had taken place three weeks after the criminal complaint, which should have given them enough time to collect additional information, institute criminal proceedings and obtain a judicial warrant first.
The Court pointed out that a lack of judicial review prior to the seizure could in principle be counterbalanced by the availability of a retrospective review. However, it came to the conclusion that the scrutiny of the measure by a judge had not provided sufficient safeguards against arbitrariness. It stated that the judge had only briefly described the factual situation leading to the seizure, cited the relevant provision and claimed that there had been pressing circumstances – without any further elaboration on why immediate action by the police had been necessary. Also, the judge had not dealt with the applicants’ assertion that the computers contained private information and that they were needed for their business at all. Due to this formalistic approach and the failure to examine arguments advanced by the applicants, the judicial review did not provide a sufficient safeguard against arbitrariness in the Court’s view. It found therefore a violation of article 8 ECHR.
Procedural requirements for the deprivation of legal capacity – Ivinovic v Croatia
In Ivinovicv Croatia, the European Court of Human Rights has dealt with procedural aspects of the decision on a partial deprivation of legal capacity.
The applicant had suffered from cerebral palsy since her early childhood. In 1968 she had been deprived of her legal capacity, but in in 1979 it had been restored.
In 2009, the local Social Welfare Centre instituted proceedings before the Zagreb Municipal Court aimed ad depriving the applicant partially of her legal capacity. It relied on statements of a social worker and the applicant’s son. Allegedly, the applicant had undergone personality changes following her hospitalization and surgery. She had stopped making payments on the mortgage for her apartment, entailing the risk of her eviction, had not paid utility bills and started buying large amounts of phone vouchers. The Social Welfare Centre submitted bills and final demands for payments in support of their request.
The Social Welfare Center appointed an employee of the center as a legal guardian to represent the applicant during the procedure; in addition to that, the applicant retained a lawyer of her own choosing. The employee of the Social Welfare Center representing the applicant consented to the (partial) deprivation of the applicant’s legal capacity during the proceedings. The applicant, on the other hand, objected. She pointed out that she had fallen behind with the bills due to her hospitalization. She had asked her son to withdraw money from her account and to pay the bills for her, but he had failed to do so.
The competent court commissioned a psychiatric report. The psychiatric expert tasked to carry out the examination found that the applicant was not entirely able to look after her needs and that she might jeopardize the interests of others. In the oral hearing, the psychiatrist endorsed the report. The court partially deprived the applicant of her legal capacity. The applicant appealed against this judgment. She advanced the argument that main reason for the court to deprive her partially of her legal capacity had been her allegedly lacking ability to handle her financial matters. In this regard, the court had heavily relied on the expert report by the psychiatrist. However, in her opinion the expert had not had neither sufficient insight into her financial matters nor the requisite expertise to come to these conclusions.
The appeal court rejected the appeal. It relied on the psychiatric report and added that the applicant’s hospitalization could not explain the applicant’s debts, since they, according to the dates on the bills, had been over a period lasting longer than the applicant’s stay in hospital.
After her complaint was rejected by the Constitutional Court, the applicant submitted an application to the European Court of Human Rights. She alleged that the way in which the proceedings had been conducted infringed on her rights under article 8 ECHR (right to private life)
The European Court of Human Rights reiterated that the deprivation as well as the partial deprivation of legal capacity amounted to an interference with a person’s private life.
It pointed out that article 8 ECHR did not contain any explicit procedural requirements. Still, the procedure in which the decision on the interference had been made had to meet certain standards so as to provide adequate protection of the interests protected by article 8 ECHR. The Court stated that it was not its task to substitute its own judgment for the judgment of the domestic courts and that states enjoyed a certain margin of appreciation when securing the rights enshrined in the Convention. However, this margin was limited where decisions affecting a person’s private autonomy were at stake. Domestic courts dealing with the total or partial deprivation of a person’s legal capacity were required to adduce sufficient reasons for their decisions which reflected that all factors to be considered for the decision had been pondered carefully.
The European Court of Human Rights pointed out that the domestic courts had heavily relied on the psychiatric reports when deciding to deprive the applicant in part of her legal capacity. While it recognized the important role of expert reports, it reiterated that it was for the judge to make the decision, not for the expert. It was also for the judge to decide whether a far-reaching measure such as the (partial) deprivation of legal capacity was called for or whether less intrusive means could be sufficient. The judge had to assess this bearing in mind all circumstances of the case.
The Court pointed out that the domestic courts had chiefly relief on two reasons: the danger to the applicant’s health and her alleged inability to make sound financial decisions. It stated that it had not been established during the domestic proceedings that the applicant did not take care of her health. With regard to the applicant’s financial situation, the European Court of Human Rights found that the Croatian courts had not established all relevant facts. The appeal court had simply referred to the bills and stated that the debts had been incurred during a longer period than the applicant’s hospitalization. It had never ascertained during which times exactly the utility bills had remained unpaid; also, it had never scrutinized the applicant’s statement that her son had taken money from her account.
The Court also criticized that the domestic courts never had dealt with the question whether less intrusive means than the partial deprivation of legal capacity could have achieved the aim of protecting the applicant.
Finally, the European Court of Human Rights pointed out that the Social Welfare Center had appointed one of its employees as the legal representative of the applicant. Thus, the person to protect the interests of the applicant had at the same time been subordinated to the institution which had filed the request, which did not guarantee and independent and effective representation.
In view of these procedural shortcomings, the European Court of Human Rights found a violation of article 8 ECHR.
Training on article 1 of Protocol 1 to the ECHR (right to property)
I put some training material on article 1 of Protocol 1 to the ECHR (right to property) online. It can be found here .
Admissibility of an application lodged by an NGO on behalf of the deceased victim – Centre for Legal Resources on behalf of Valentin Campeanu v. Romania
In Centre for Legal Resources on behalf ofValentin Campeanu v Romania, the Grand Chamber of the European Court of Human Rights has modified the Court’s jurisprudence on the admissibility of applications in an important way. Establishing a new exception from the requirement that the applicants must claim to be a victim of a violation of a right enshrined in the Convention, the ECtHR accepted that a Nongovernmental Organisation may in very specific circumstances have standing to submit an application on behalf of the person directly affected by a human rights violation, even though this person had not given the NGO power of attorney.
The case concerned Mr Valentin Campeanu, a Romanian citizen of Roma ethnicity who died in a psychiatric hospital.
Mr Campeanu had been abandoned by his mother at birth and had grown up in an orphanage. When he was about five years old, he had been diagnosed as HIV positive. He was also found to have an IQ of 30, constituting a ‘profound intellectual disability’.
When Mr Campeanu reached the age of 18, the competent Romanian authorities decided that he be placed in a psychiatric hospital. The hospital informed the authorities that it could not admit Mr Campeanu, since it was not equipped to provide care for persons with HIV and a mental disability.
A protracted conflict ensued between various institutions and health care facilities regarding the admission of Mr Campeanu and the treatment he should receive. Mr Campeanu was transferred to different hospitals for short periods of time. During this period, his state of health and his general condition deteriorated significantly. He was malnourished, lacked proper clothing and necessary medication was not administered.
In February 2004, staff members of the Centre for Legal Resources visited the facilities. They became aware of the condition Mr Campeanu was in and asked for his immediate transferal, which was refused. Shortly after, Mr Campeanu died. Unaware of his death, the Centre for Legal Resources sent urgent letters to various officials (including the Minister of Health) and alerted them to Mr Campeanu’s case.
When the Centre for Legal Resources learned of Mr Campeanu’s death, they filed a criminal complaint. However, the ensuing investigation did not lead to any findings of misbehavior.
The Centre for Legal Resources filed an application with the European Court of Human Rights.
An important part of the judgment deals with the admissibility of the application. The Romanian government argued that the applicants did not have standing to submit an application on Mr Campeanu’s behalf.
Article 34 ECHR requires that the applicant has to claim to be a victim of a violation of one of the rights guaranteed by the Convention. The applicant must be directly affected by an action or omission which infringes upon his rights under the Convention. Legal acts or the conduct of a state cannot be challenged before the European Court of Human Rights just on the grounds that the applicant thinks that they are not in compliance with the ECHR, but the applicant has to substantiate that he or she was affected by said conduct.
The Centre for Legal Resources, which had submitted the application, had not been affected by the conduct of the Romanian state. The victim was Mr Campeanu. He had neither filed the application nor given the Centre for Legal Resources power of attorney or otherwise authorized them to act on his behalf.
The European Court of Human Rights has acknowledged a number of exceptions from the rule that only the victim have standing before the Court: Close family members who suffer from effects of a human rights violation directly affecting someone else may in certain circumstances have the right to submit an application as so called indirect victims (see for example Kurt v Turkey in which the Court held that the mother of a young man who was detained illegally and tortured had standing to file an application). In many cases, in which the applicant died before the proceedings before the Court were finalized, the European Court of Human Rights has granted relatives permission to pursue the case. Even in cases where the victim died before he could submit an application, the Court has sometimes accepted that family members could lodge an application if they had an interest in doing so.
However, all these exceptions have in common that the persons who pursued the case had close ties to the (direct) victim and could substantiate on interest in the outcome of the case on their own. None of this applied to the Centre for Legal Resources.
Regarding NGOs, the European Court of Human Right had held on several occasions that they do not have standing to submit an application on behalf of persons or groups they are advocating for – unless they have been expressly authorized by direct victims.
Consequently, the Romanian government argued that the Centre for Legal Resources did not have standing.
The European Court of Human Rights was faced with a difficult decision: Its prior jurisprudence suggested that the application had to be dismissed as inadmissible. While previous judgments and decisions are not formally binding to the Court, it does not deviate from them without strong justification. Also, declaring the application admissible was not easy to reconcile with the express requirement that the applicant had to be a victim. It might entail the risk of softening this criterion and opening the gate to introducing elements of an ‘actio popularis’ into the Convention contrary to its language.
On the other hand, it was the very particularity of Mr Campeanu’s situation that there had been virtually no one to represent his interests. He had been an orphan with no financial means and an intellectual disability, belonging to a marginalized ethnic group and suffering from a disease often giving rise to discrimination. It is hard to imagine how somebody could be more vulnerable. While he was in obvious need for special care and attention, his situation made it impossible for him to take the initiative to obtain assistance. Rejecting the application as inadmissible on the grounds that the Centre for Legal Resources did not have power of attorney from Mr Campeanu in a way would have meant perpetuating this situation.
The European Court of Human Rights held that the applicants had standing to lodge an application with the Court. The Court pointed out that the rights enshrined in the Convention were to be practical and effective. It also pointed out that its judgments did not only serve the purpose to decide the individual cases brought before it, but also to advance human rights in Europe.
The Court stated that rejecting the application submitted by the Centre for Legal Resources would allow Romania to escape from its accountability in the case of Mr Campeanu. Considering this and given that the Legal Resources Centre had already acted on Mr Campeanu’s behalf on the domestic level, the European Court of Human Rights held that the application was admissible.
Four judges criticized the solution opted for by the majority in their separate opinions. Judge Pinto de Albuquerque protested that the Court should have developed a general approach to cases concerning particularly vulnerable victims rather than basing its ruling on the exceptional circumstances of the individual case. In his view, the case had given rise to important questions of the interpretation of human rights treaties and of the representation of members of vulnerable groups as well as to the limits of judicial powers. The Court had, in his opinion, failed to answer these questions.
The Court found violations of the right to life under article 2 of the ECHR and of the right to an effective legal remedy (article 13 ECHR). It stated that Romania had failed to take necessary precautions to ensure the protection of Mr Campeanu’s life despite his bad condition and vulnerable state. It also held that Romania had not undertaken the effective investigation of the circumstances of Mr Campeanu’s death
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