The Jurisprudence of the European Court of Human Rights

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  • 1 Researcher at the European Academy of Bolzano, Minorities and Autonomies; Law Degree; LL.M. (University of Essex); currently doctoral candidate in Law (University of Graz).

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  • 1 Hereinafter the "Convention" or "ECHR". 2 For further reference, see the article by Fabio Buonomo, "Protocol 12 to the European Convention on Human Rights", in this volume. 3 Hereinafter "the Court" or "Eur. Ct. H.R.". 4 See Eur. Ct. H.R., Appl. 34369/97, Thlimmenos 1'. Greece, judgment of 6 April 2000, para. 22. In the circumstances of the Thlimmenos case the Court noted that there was no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other felonies and found thus violation of Article 14. 5 See, Eur. Ct. H.R., Abdulaziz, Ca6ales and Balkandali 1'. the United Kingdom, judgment of 28 May 1985, Series A, No. 94.

  • 6 See, Eur. Ct. H.R., Appl. 25781/94, Cyprus v.Turkey, judgment of 10 May 2001. The case relates to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August of 1974 and the continuing division of the territory of Cyprus. In the Convention proceedings, Cyprus contended that Turkey was accountable under the Convention for the violations alleged notwithstanding the proclamation of the 'Turkish Republic of Northern Cyprus' ('TRNC') in November 1983 and the subsequent enactment of the TRNC Constitution in May 1985. Cyprus maintained that the TRNC was an illegal entity from the standpoint of international law and pointed to the international community's condemnation of the establishment of the TRNC. Turkey, on the other hand, maintained that the TRNC was a democratic and constitutional state, which was politically independent of all other sovereign states, including Turkey. For that reason, Turkey stressed that the allegations made by Cyprus were imputable exclusively to the TRNC and that Turkey could not be held accountable under the Convention for the acts or omissions on which those allegations were based. 7 Ibid., paras. 309-11. In the present case the general living conditions of Greek Cypriots resident in northern Cyprus were imposed on them in pursuit of an acknowledged policy aiming at the separation of the ethnic groups on the island in the framework of a bi-communal and bi-zonal arrangement. This policy has led to the confinement of the Greek Cypriot population still living in northern Cyprus (other than Maronites) within a small area of the Karpas peninsula. The Karpas Greek Cypriots were compelled to live isolated, restricted in their movements, controlled and with no prospect of renewing or developing their community. 8 Eur. Comm. H.R., Appl. 4715/70, 4783/71 and 4827/71, East African Asians v. the United Kingdom, decision on the admissibility of 6 March 1978, 13 Decisions and Reports (1978), 17. 9 See, Eur. Comm. H.R., Appl. 6742/74, X v. the Federal Republic of Germany, decision on the admissibil- ity of 10 July 1975, 3 Decisions and Reports (1975), 102; Appl. 7230/75, X v. the Netherlands, decision on the admissibility of 4 October 1976, 7 Decisions and Reports (1976), 111. For an interesting

  • interpretation of Article 53 ECHR taken together with Article 1 CCPR, see UN Commission on Human Rights, "Jurisprudence of the European Court of Human Rights in 1999 and Minority Groups", paper prepared by Prof. G. Gilbert, 10 April 2000, E CN.4/Sub.2 AC.S 2000CRP.L paras. 6-7. 'o Eur. Ct. H.R., Sidoropoulos v. Greece, judgment of 10 July 1998, Reports 1998-IV, 9, para. 14. " Ibid, 20, para. 41.

  • the government stressed that knowledge of the historical context and of the current situation in Bulgaria and on the Balkans was essential for the understanding of the issues in the present case. Their explanation may be summarized as follows: "Historically, the Bulgarian nation consolidated within several geographical regions, one of them being the geographical region of Macedonia. In 1878, when Bulgaria was partially liberated from Turkish dominance, the Berlin Peace Treaty left the region of Macedonia within the borders of Turkey. Between 1878 and 1913 the Bulgarian population of Macedonia organised five unsuccessful uprisings seeking liberation from Turkish rule and union with Bulgaria. There followed massive refugee migrations from the region to the Bulgarian motherland. Hundreds of thousands of Macedonian Bulgarians settled in Bulgaria.... Individuals considering themselves Macedonians are far from being discriminated against in Bulgaria. They have their own cultural and educational organisation, Svetlina. There are books and newspapers in the 'Macedonian language"'. Appl. 29221/95 and 29225/95, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, judgment of 2 October 2001, para. 47.

  • '3 It is rather interesting to mention the dissenting opinion of Judge Botoucharova in the Stankov case: "Taking into account the domestic margin of appreciation, the Convention organs found in many cases that restrictions on demonstrations were justified on public-order grounds. To cite some

  • examples, the following prohibitions on assemblies were considered in conformity with Article 11 para. 2: a two-month ban on public processions other than customary ones in London: a general ban on demonstrations on issues related to Northern Ireland in Trafalgar Square in London; a four-day ban on assemblies within a radius of four miles from the Stonehenge Monument in view of past incidents and disorder caused by Druid followers. In my opinion, the Bulgarian authorities in the particular circumstances of the present case did not overstep their margin of appreciation and restricted the applicants' freedom of peaceful assembly to the extent strictly necessary for the protection of the rights of others, public safety and the prevention of disorder." 1' Eur. Ct. H.R., United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-1. 15 our. Ct. H.R., Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-111. 16 our. Ct. H.R., Freedom and Democracy Party (6ZDEP) r. Turkey, judgment of 8 December 1999, Reports 1999-VIII.

  • " Several of the judgments reported here were available only in French at the time of writing. Please refer to the Court's website, http://www.echr.coe.int/, to check whether English versions are now available.

  • 18 Ibid., 35-47.

  • 19 Cf. Eur. Ct. H.R. (akici v. Turkey, judgment of 8 July 1999, Reports 1999-IV, 22, para. 86. 20 Eur. Ct. H.R., Appl. 25781/94, Cyprus v. Turkey, judgment of 10 May 2001.

  • 21 Eur. Ct. H.R., Appl. 67638/01, Oz6ey v. Turkey, judgment (friendly settlement) of 31 January 2002.

  • zz Eur. Ct. H.R., Appl. 29856/96, Ozcan r. Turkey, judgment (friendly settlement) of 9 April 2002. The text of the judgment is available only in French. 23 Eur. Ct. H.R., Cyprus u. Turkey, para. 150.

  • 24 Eur. Ct. H.R., Appl. 34684/97, Yolcu v. Turkey, judgment of 5 February 2002. zs Note that on 1 February 2002 the Secretary General of the Council of Europe communicated that the Turkish Government had decided to withdraw the derogation concerning Article 5 of the Convention with respeet to provinces under emergency rule which had been made in 1992. In compli- ance with the case law of the Court, Turkey recently reduced the maximum detention period before an individual is brought before a judge to four days.

  • zs Eur. Ct. H.R., Cyprus v. Turkey, 71, paras. 295-6. 27 Eur. Ct. H.R., Appl. 23423/94, Matyar r. Turkey, judgment of 21 February 2002.

  • Z8 Latvia regained independence from the USSR in 1991. On 28 January 1992, the Russian Federation assumed jurisdiction over the former Soviet armed forces stationed on the territory of Latvia.

  • 29 On 10 May 2002, the Council of Europe's Secretary General announced the adoption by the Latvian Saeima of amendments to the election laws, stating that "Latvian language proficiency will not be a prerequisite for a person to become a member of the Saeima or a local self-government". The adoption of these amendments followed the decision of the Eur. Ct. H.R. in the case of Podkolzina v. Latvia.

  • 3o Eur. Ct. H.R., Kuharec v. Latvia, application registered in August 2001. For further information see Latvian Human Rights Committee, 40 Minority Issues in Latvia (9 December 2001). 31 See e.g., Eur. Comm. H.R., Appl. 9278/81 and 9415/81, G. and E. v. Norway, decision on the admissibility of 3 October 1983, 35 Decisions and Reports (1983), 30. 32 Eur. Ct. H.R., Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV.

  • 33 Eur. Ct. H.R., Appl. 26662/95, varey v. the United Kingdom, judgment (friendly settlement) of 21 December 2000. " By letter dated 13 April 2000, the government informed the Court that they wished to settle the case and were negotiating with the applicants. On 5 May 2000, the government informed the Court that the parties had agreed to settle the case on the terms that the government pay the applicants the sum of GBP 60,000 in full and final settlement of their complaints under the Convention, that the govern- ment pay the applicants' legal costs of GBP 15,500 and that the applicants withdraw their application. 'S Eur. Ct. H.R., Appl. 27238/95, Chapman v. the United Kingdom; 24882/94, Beard v. the United Kingdom; 24876/94, Coster r. the United Kingdom; 25289/94, Lee v. the United Kingdom; 25154/94, Jane Smith, u. United Kingdom, judgments of 18 January 2001.

  • 36 "The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open.... There are five purposes in Green Belts: to check the unrestricted sprawl of large built-up areas; to prevent neighbouring towns from merging into one another; to assist in safeguarding the countryside from encroachment; to preserve the setting and special character of historic towns; and to assist in urban regeneration by encouraging the recycling of derelict and other urban land." Eur. Ct. H.R., Chapman v. the United Kingdom, para. 28.

  • z Chapman v. the United Kingdom, para. 47.

  • 'e Ibid., 38-44.

  • 39 At the time of the drafting of this article, decisions as to admissibility had not yet been delivered.

  • 40 Eur. Ct. H.R., Appl. 28222/95, Muonio Saami Village v. Sweden, judgment of 9 January 2001. " Eur. Ct. H.R., Buscarini and others v. San Marino, judgment of 18 February 1999, Reports 1999-1.

  • 'z Eur. Ct. H.R., Appl. 38178/97, Serif Greece, judgment of 14 December 1999, Reports 1999-IX, 12, para. 53.

  • 43 Eur. Ct. H.R., Appl. 72881/01, Moscow Branch of Salvation Army v. Russia. " Eur. Ct. H.R., Appl. 302/02, Chaykovskiy et al. v. Russia.

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