S.A.S. v. France (no. 43835/11) – Grand Chamber Judgment 1 July 2014: In this case, which was not heard in Section but was relinquished to the Grand Chamber on 30 March 2013, the Court upheld a 2011 ban by France on full-face veils in public. The applicant, a French national and Muslim woman, complained that the law violated her rights under Articles 8 (right to respect for private and family life), 9 (freedom of thought, conscience, and religion), and 10 (freedom of expression), as well as Article 14 (prohibition of discrimination). The Court ruled that the ban did not violate any article of the Convention. The Court found that “respect for the minimum set of values of an open democratic society,” specifically the minimum requirements for “living together,” outweighed the individual’s choice to wear a full-face veil. By “raising a veil concealing the face” an individual could violate the “right of others to live in a space of socialisation which made living together easier.” Furthermore, the Court pointed out that while the ban disproportionately affected Muslim women wishing to wear a full-face veil, there was nothing in the law which expressly focused on religious clothing; the ban also prevented any item of clothing which covers the face. For more information, please consult the Court’s press releases in English or French.

Fernández Martínez v. Spain (no. 56030/07) – Grand Chamber Judgment 12 June 2014: The case concerned the non-renewal of the contract of a married priest and father of five who taught Catholic religion and ethics, after he had been granted dispensation from celibacy and following an event at which he had publicly displayed his active commitment to a movement opposing Church doctrine. The Court held that there had been no violation of the Convention and considered that it was not unreasonable for the Church to expect particular loyalty of religious education teachers, since they could be regarded as its representatives. Press release title: The decision not to renew the contract, as religious education teacher, of a Catholic priest who was married and had several children, after his active involvement in a movement opposing Church doctrine had been made public, was legitimate and proportionate. [Judgment] [Press Release] [Legal Summary (3rd Section)]

O’Keefe v. Ireland (no. 35810/09) – Grand Chamber Judgment 28 January 2014.  The case concerned the question of the responsibility of the State for the sexual abuse of a schoolgirl, aged nine, by a lay teacher in an Irish National School in 1973. By a decision of the Grand Chamber on 28 January 2014, the Court held by 11 votes to 6, that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) and of Article 13 (right to an effective remedy) of the European Convention on Human Rights concerning the Irish State’s failure to protect the applicant from sexual abuse and her inability to obtain recognition at national level of that failure; and unanimously, that there had been no violation of Article 3 ECHR as regards the investigation into the complaints of sexual abuse at the school.

[See the Court’s Press Release:] The Court that it was an inherent obligation of a Government to protect children from ill-treatment, especially in a primary education context. That obligation had not been met when the Irish State, which had to have been aware of the sexual abuse of children by adults prior to the 1970s through, among other things, its prosecution of such crimes at a significant rate, nevertheless continued to entrust the management of the primary education of the vast majority of young Irish children to National Schools (State-funded primary schools privately managed under religious patronage), without putting in place any mechanism of effective State control against the risks of such abuse occurring. On the contrary, potential complainants had been directed away from the State authorities and towards the managers (generally the local priest) of the National Schools. Indeed, any system of detection and reporting of abuse which allowed over 400 incidents of abuse to occur in the applicant’s school for such a long time had to be considered ineffective.

Chiragov and Others v Armenia (no. 13216/05) – Grand Chamber hearing 22 January 2014. {Webcast of the hearing.} Applicants are Azerbaijani Kurds who were victims of the early 1990s conflict in the Nagorno-Karabakh Autonomous Oblast (“the NKAO”). They were residents of the district of Lachin, where their ancestors had lived for hundreds of years. They were forced to flee their homes in 1992 and have since been unable to return to their homes and properties because of Armenian occupation. They complain under Article 1, Protocol 1 of interference with the right to peaceful enjoyment of their possessions. They further complain, under Article 8, of infringement of the right to respect for their private and family life, under Article 13 of lack of effective remedy, and under Article 14 of discrimination on the basic of ethnic and religious affiliation. After relinquishment of jurisdiction to the Grand Chamber on 9 March 2010, the Court held a hearing in this case on 15 September 2010. On 14 December 2011, the Grand Chamber declared the application admissible. The Grand Chamber held a hearing in the case on 22 January 2014.

Vallianatos and Others v. Greece  (nos. 29381/09 and 32684/09) – Grand Chamber Judgment 7 November 2013. The case concerns “civil unions” introduced by Law no. 3719/2008, called “Reforms concerning the family, children and society”. This Law made provision for an official form of partnership, allowing the persons concerned to register their relationship within a more flexible legal framework than that provided by marriage. The applicants complain that this Law provides for civil unions only for different-sex couples, thus automatically excluding same-sex couples from its scope of application. In its judgment of 7 November, the Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. [Court Press Release]

S.A.S. v. France (no. 43835/11) – Grand Chamber hearing 27 November 2013, 9.15 a.m. local time. The case concerns the complaint of a French national, who is a practising Muslim, that she is no longer allowed to wear the full-face veil in public following the entry into force, in April 2011, of a law prohibiting concealment of one’s face in public places.

Hämäläinen v. Finland (no. 37359/09) – Grand Chamber hearing 16 October 2013 {Webcast} – The case concerns the complaint of a male-to-female transsexual that she could only obtain full official recognition of her new gender by having her marriage turned into a civil partnership.

Gross v. Switzerland (no. 67810/10) – The Court has accepted the referral of this case to the Grand Chamber. From the Court’s press release:  The case concerned the complaint of an elderly woman, who wishes to end her life but does not suffer from a clinical illness, that she was unable to obtain the Swiss authorities’ permission to be provided with a lethal dose of a drug in order to commit suicide.

In finding a violation of ECHR Article 8 (right to respect for private and family life)urt held in particular that Swiss law, while providing the possibility of obtaining a lethal dose of a drug on medical prescription, did not provide sufficient guidelines ensuring clarity as to the extent of this right. This uncertain situation was likely to have caused Ms Gross a considerable degree of anguish. At the same time, the Court did not take a stance on the question of whether she should have been granted the possibility to acquire a lethal dose of medication allowing her to end her life.

Sindicatul “Păstorul cel Bun” v. Romania (no. 2330/09) – Grand Chamber Judgment 9 July 2013.  By a majority, the Grand Chamber found, contrary to the Third Section judgment of the 31 January 2012, no violation of Article 11 (freedom of assembly and association). 

From the Court’s Press Release of 9 July 2013: “The case concerned the refusal by the Romanian State of an application for registration of a trade union formed by priests of the Romanian Orthodox Church.

“Whereas the Court had held in its Chamber judgment that the Dolj County Court had not taken sufficient account of all the relevant arguments and had justified its refusal to register the union on purely religious grounds based on the provisions of the Church’s Statute, the Grand Chamber took the view that the County Court’s decision had simply applied the principle of the autonomy of religious communities. The court’s refusal to register the union for failure to comply with the requirement of obtaining the archbishop’s permission was a direct consequence of the right of the religious community concerned to make its own organisational arrangements and to operate in accordance with the provisions of its own Statute.

“The Court held that in refusing to register the applicant union, the State had simply declined to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of denominational neutrality under Article 9 of the Convention.”

[From the Court’s Press Release of 31 January 2012]: The applicant union, Păstorul cel Bun, was established on 4 April 2008 by 35 clerics and lay members of the Romanian Orthodox Church, the majority of them Orthodox priests in parishes of the Metropolis of Oltenia (a region in south-western Romania). The aim of the union, as set forth in its statutes, is to defend the professional, economic, social and cultural interests of its members, both clerics and lay members, in their dealings with the Church hierarchy and the Ministry of Cultural and Religious Affairs. The union made an application to the district court to be granted legal personality and to be entered in the official register of trade unions. The representative of the Archdiocese objected to the application, arguing that the internal regulations of the Orthodox Church prohibited the creation of any kind of association without the prior consent of the Archbishop. The public prosecutor supported the application, arguing that the establishment of the union was compatible with the law and that the Church’s internal regulations could not prohibit it, as the priests and lay persons concerned were all employed by the Church and as such were entitled to form an association to defend their rights. 

In a judgment of 22 May 2008 the court ordered the entry of Păstorul cel Bun in the register of trade unions, thereby granting it legal personality. The court found that, since the members of the union carried out their duties on the basis of an employment contract, their right to organise could not be made subject to the prior consent of their employer, in the absence of compelling reasons relating to public safety or the protection of the rights and freedoms of others.

The Archdiocese appealed against this judgment, submitting that the constitutional principles of freedom of religion and the autonomy of religious communities could not be made subordinate to freedom of association. In a judgment of 11 July 2008 the county court set aside the first-instance judgment and rejected the application for Păstorul cel Bun to be granted legal personality and to be entered in the trade unions register. It noted that no reference to trade unions was contained in the Statute of the Orthodox Church, according to which the establishment and management of religious associations had to receive the blessing of the Church Synod. If a union were to be set up, the Church hierarchy would be obliged to work together with a new body which operated outside the rules and traditions of canon law governing decision-making.

Relying on Article 11 (freedom of assembly and association) of the European Convention on Human Rights, the union complains about the refusal to register it as a trade union.

The application was lodged with the European Court of Human Rights on 30 December 2008. In its judgment of 31 January 2012, the Court held, by five votes to two, that there had been a violation of Article 11 of the Convention. On 9 July 2012 the panel of the Grand Chamber accepted the Romanian government’s request that the case be referred to the Grand Chamber.

S.A.S. v. France (no. 43835/11)  – Communicated 1 February 2012, relinquished in favour of the Grand Chamber 30 May 2013. The applicant is a French national, a practicing Muslim, who declares that she wears the burqa in order to comply with her faith, her culture, and her personal convictions. For her it is a matter of covering her entire body, including a fine veil covering her face as well the niqab, a veil covering the face with the exception of the eyes. She emphasizes that neither her husband nor any other member of her family puts any pressure upon her to dress in this fashion.

The applicant adds that she wears the niqab in private as well as in public, but in a systematic way.  For example, she does not wear it when consulting a doctor, or when she meets friends in a public place, or seeks to make acquaintances.  She therefore agrees not to wear the niqab in public all the time, but she wishes to be able to make the choice, under certain appropriate spiritual conditions, as, for example, for religious events during Ramadan.  Her goal is not to create a nuisance for others, but to be able to be in accord with her own religious feelings and beliefs.

The applicant agrees that she should remove the face covering for security checks, at a bank, or when taking a plane.  However, under French law she is forbidden to cover her face in public at all.

The applicant therefore complains that when she wears the veil in public she could be subject, under law, to penalties as well as to harassment and discrimination, constituting degrading treatment in violation of ECHR Article 3.  She furthermore invokes Article 8 of the Convention, violation of her right to respect for her private life. Invoking Articles 9, 10, and 11 she complains of violation of freedom of religion, freedom of expression, and freedom of association or assembly. Finally, invoking Article 14, she complains that the legal prohibition of wearing a face covering in public generates discrimination on the basis of sex, religion, and ethnic origin, to the detriment of women, such as herself, who wear the total veil.

X and Others v. Austria (application no. 19010/07) – Grand Chamber Judgment 19 February 2013. The first applicant and the third applicant are two women living in a stable relationship. The second applicant is the third applicant’s son. He was born out of wedlock and his mother has sole custody of him. The applicants live in a common household and the first and third applicants jointly care for the second applicant. The case concerns the inability of the first applicant to adopt the second applicant under Austrian law.

The applicants complain under Article 14 of the Convention taken in conjunction with Article 8 that they are being discriminated against on account of their sexual orientation. They submit that there is no reasonable and objective justification for allowing adoption of one partner’s child by the other partner as far as heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in case of homosexual couples.

A Chamber Hearing was held in this case on 1 December 2011.  Jurisdiction in the case was relinquished to the Grand Chamber on 5 June 2012.  The Grand Chamber hearing was held on 3 October 2012.

In its judgment of 19 February 2013, the Grand Chamber held, unanimously, that there had been no violation of Article 14 taken in conjunction with Article 8 of the Convention when the applicants’ situation is compared with that of a married couple in which one spouse wishes to adopt the other spouse’s child; and held, by ten votes to seven, that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention when the applicants’ situation is compared with that of an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child. 

In the matter of compensation, the Court held, by eleven votes to six, (a) that the respondent State is to pay, within three months, the following amounts: (i) EUR 10,000, plus any tax that may be chargeable, jointly to the applicants, in respect of non-pecuniary damage; (ii) EUR 28,420.88, plus any tax that may be chargeable to the applicants, in respect of costs and expenses.

Fernández Martínez v. Spain (application no. 56030/07) – Grand Chamber Hearing 30 January 2013.  [Webcast of the Hearing (original in French); English]. [Excerpts from the Court’s press release:] The case concerned the decision not to renew of the contract of a priest, who was married with five children, to teach Catholic religion and morals, following the publication of an article disclosing his membership of the “Movement for Optional Celibacy”. The applicant, Mr José Antonio Fernández Martínez, is a Spanish national who was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from celibacy. He was married in a civil ceremony in 1985, and he and his wife have five children. He taught Catholic religion and morals in a State high school from October 1991, his contract being renewed every year by the Bishop of the Diocese of Cartagena.

A newspaper article published in 1996 published a photo of Mr Fernández Martínez, together with his wife and five children, and reported that he was a member of the “Movement for Optional Celibacy”, a group disagreeing with the Church’s position on abortion, divorce, sexuality and conception.

On 15 September 1997 the Vatican authorities granted Mr Fernández Martínez’s application for dispensation from celibacy, specifying that anyone granted such a dispensation was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise “according to his own criteria and provided that there is no scandal.” 

On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education of its intention not to renew Mr Fernández Martínez’s contract for the 1997/98 school year.  The Ministry notified him of the decision, which was effective from 29 September 1997.

Mr Fernández Martínez appealed to the employment tribunal, which found that he had been discriminated against because of his civil status and his membership of the Movement for Optional Celibacy. It declared his dismissal null and void and ordered his reinstatement in his former post. 

The Ministry of Education, the regional education authority and the Diocese appealed, and the High Court of Justice – noting that the restrictions imposed on the applicant’s rights had to be considered proportionate to the aim pursued, namely the avoidance of scandal – found that the contract, which had to be renewed annually by the bishop, had simply expired. Mr. Fernández Martínez had therefore not been dismissed. On June 2007 the Constitutional Court dismissed the applicant’s appeal.

Before the ECtHR the applicant, relying on Article 8 of the Convention, alleged that the nonrenewal of his contract because of his personal and family situation had infringed his right to respect for his private and family life. He complained that he had been discriminated against and that the public disclosure of his status as a married priest with several children formed part of his freedom of expression.

Relying on Article 6 § 1 (right to a fair hearing), Mr Fernández Martínez complained that two of the judges who had delivered the Constitutional Court judgment had not been impartial and should have stood down because their religious beliefs favoured the Catholic Church.  The Court observed that the question was whether the State was required to give precedence to Mr Fernández Martínez’s right under Article 8 (right to respect for private life) over the rights of the Church under Articles 9 (right to freedom of religion) and 11 (freedom of association) and whether it had afforded him sufficient protection. Since the competent courts had struck a fair balance between several private interests, the Court found that there had been no violation of Article 8.

As to the Article 6 complaint, the Court observed that Mr Fernández Martínez had not used all the means available to him in domestic law to challenge the impartiality of the judges concerned, and dismissed his complaint on that account for failure to exhaust domestic remedies.

Valliantos and Mylonas and C.S. and Others v. Greece (application nos. 29381/09, 32684/09) – Grand Chamber Hearing 16 January 2013.  [From the Court’s press release:] The case concerns the legislation on “civil unions” that entered into force in Greece in November 2008. The applicants allege that these unions, comprising a “contract between two individuals of full age and of different sexes”, are discriminatory. The applicants are eight Greek nationals who live in Athens and an association with its registered office in Athens. Some of the applicants live together as couples, while others are in a relationship but do not live together.

Law no. 3719/2008 entered into force in November 2008. It made provision for the first time in Greece for an official alternative to marriage, in the form of “civil unions” (σύμφωνο συμβίωσης). Such unions are reserved exclusively to two different-sex adults. They are entered into by means of a notarial instrument registered with the civil registry.

Relying on Article 8 of the Convention, taken alone and in conjunction with Article 14 of the Convention, the applicants complain that the Law, which limits civil unions exclusively to adults of different sex, breaches their right to respect for their private life and the principle of prohibition of discrimination. Under Article 13 of the Convention, the applicants further complain of the absence of an effective remedy in domestic law by which to assert their complaints concerning the alleged violation of Articles 8 and 14 of the Convention before the domestic courts.

The applications were lodged with the European Court of Human Rights on 6 May 2009. On 11 September 2012 the Chamber relinquished jurisdiction in favour of the Grand Chamber.

El-Masri v. “the former Yugoslav Republic of Macedonia” (application no. 39630/09) – Grand Chamber Judgment 13 December 2012. Applicant Khaled El-Masri is a German national of Lebanese descent who was born in Kuwait and lives in Germany. In December 2003 he boarded a bus for a visit to Skopje, Macedonia. He alleges the following:  At the Serbian/Macedonian border his passport was doubted and his belongings were searched. He was questioned about possible ties with several Islamic organizations. He was driven to a hotel and detained; he was interrogated repeatedly in English, which he does not speak well.  His requests to contact the German embassy were denied, and he was threatened by a gun to the head. After seven days of confinement he was offered offered a deal:  a return to Germany in exchange for a confession that he was a member of Al-Qaeda. On day 13 of his confinement, he commenced a hunger strike. After 24 days he was filmed and then, handcuffed and blindfolded, was taken to the Skopje airport, where he alleges he was turned over to a CIA “rendition” team.  Here he was beaten and stripped and dressed in a diaper and a track suit.  Wearing ear muffs and eye pads, blindfolded with a hood over his head, he was shackled and taken aboard an aircraft, where he was restrained and injected with drugs. He was taken not to Germany but to Afghanistan where he suffered further confinement, threats, and torture.  In March he commenced, with other inmates, a hunger strike. He was force fed through a tube and became ill. After further incidents he was returned on 29 May to Germany, in very poor physical condition. Since that time he has brought number of legal actions, including a claim in the United States that his mistreatment had been at the hands of the CIA. In 2009 he brought complaints before the ECHR under Articles 3, 5, 8, 10, and 13. 

In a Grand Chamber Judgment of 13 December 2012, the Court found violations of Articles 3, 5, 8, and 13 and ordered just satisfaction of 60,000 EUR to be paid to Mr El-Masri in respect of non-pecuniary damage.

X and Others v. Austria (no. 19010/01) — Grand Chamber Hearing 3 October 2012. {Webcast of the Hearing}. The first applicant and the third applicant are two women living in a stable relationship. The second applicant is the third applicant’s son. He was born out of wedlock and his mother has sole custody of him. The applicants live in a common household and the first and third applicants jointly care for the second applicant. The case concerns the inability of the first applicant to adopt the second applicant under Austrian law.

The applicants complain under Article 14 of the Convention taken in conjunction with Article 8 that they are being discriminated against on account of their sexual orientation. They submit that there is no reasonable and objective justification for allowing adoption of one partner’s child by the other partner as far as heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in case of homosexual couples.

A Chamber Hearing was held in this case on 1 December 2011.  Jurisdiction was relinquished to the Grand Chamber on 5 June 2012.  The Grand Chamber hearing was held on 3 October 2012.

Nada v. Switzerland (no. 10593/08) — Grand Chamber Judgment 12 September 2012. The applicant, Youssef Moustafa Nada, is an Italian and Egyptian national who has lived since 1970 in Campione d’Italia, an Italian enclave inside the Swiss Canton of Ticino, separated from the rest of Italy by Lake Lugano. The case concerns the restricting of the applicant’s cross-border movement and the addition of his name to a list annexed to a federal Ordinance, in the context of the implementation by Switzerland of United Nations Security Council counter-terrorism resolutions.

The applicant alleged that such restrictions violated his rights under ECHR Articles 8 (right to respect for private and family life), 13 (right to an effective remedy), and 5 § 1 (right to liberty and security). He further complained of a breach of his freedom to manifest his religion or beliefs (Article 9), arguing that his inability to leave the enclave of Campione d’Italia had prevented him from worshipping at a mosque, and of consequent ill-treatment prohibited by Article 3.

The Court observed that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. As Switzerland had failed to harmonise the international obligations that appeared contradictory, the Court found that there had been a violation of Article 8, as well as a Article 13 (right to an effective remedy) taken together with Article 8. As Mr Nada had not been under detention or surveillance, however, and was free to live and move about the area in which he had freely chosen to live, the Court, like the Federal Court, thus found that the applicant had not been “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland.

In view of all the material in its possession, and even supposing that those complaints had been duly raised before the domestic courts, the Court did not find any appearance of a violation of Articles 3 and 9.

Announced 17 July 2012:  Referral to Grand Chamber accepted in Sindicatul “Păstorul cel Bun” v. Romania (no. 2330/09) – Chamber Judgment 31 January 2012.  [Becket Fund announcement of 24 July.]

Mouvement Raëlien Suisse v. Switzerland (no. 16354/06) — Grand Chamber Judgment 13 July 2012 [no violation of Article 10]. The applicant association is a Swiss non-profit-making association, the national branch of the Raëlian Movement, an organization based in Geneva and founded in 1976 with the stated aim of making initial contact and developing good relations with extraterrestrials. In 2001 it asked the Neuchâtel police headquarters for permission to carry out a poster campaign. Permission was refused, in particular on the grounds that the campaign would be contrary to public order and public policy; the Raëlian Movement had already been the subject of criminal complaints about certain sexual practices involving minors, and it also promoted cloning and eugenics and advocated a political system based on problem-solving and creative intelligence as criteria for governing. Relying on Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression), the applicant association complained about the refusal.

In a chamber judgment of 13 January 2011, the Court, noted that this was the first time it had examined whether the domestic authorities should allow an association to impart its ideas through a poster campaign using public space made available to it. The Court further noted that though the posters themselves did not contain offensive material, they referred to the association’s website, which make easily available to anyone, including children, offensive material and opinions: for example cloning services offered by the Clonaid company, the possible existence of sexually deviant practices involving under-age children and the threats to public order, safety, and morals posed by “geniocracy” and the criticism of contemporary democracies. The Court held, therefore, that the Swiss government was within the margin of appreciation afforded it by the European Convention with regard to public space and had given sufficient reasons for its actions. There is, therefore, no violation of Article 10 in this matter and no necessity to undertake a separate consideration of Article 9.

On 13 July 2012 the Grand Chamber returned a judgment in which it found no violation of Article 10. The action of the Swiss government had met a “pressing social need” and the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign. The restriction was, moreover, limited to the display of posters on public facilities, allowing the association to use other means of expression.

Herrmann v. Germany (no. 9300/07) — Grand Chamber Judgment 26 June 2012 [violation of Article 1 of Protocol No. 1]. {Webcast of the Hearing} The applicant, Günter Herrmann, is a German national who was born in 1955 and lives in Stutensee (Germany). As the owner of two landholdings in Rhineland-Palatinate which are smaller than 75 hectares, he is automatically a member of the Langsur hunting association under German Federal Hunting Law (Bundesjagdgesetz). He complains about being obliged to tolerate the hunt on his premises even though he is opposed to hunting on moral grounds. He relies on Articles 9 (freedom of thought conscience and religion), 11 (freedom of assembly and association), 14 (prohibition of discrimination) and Article 1 of Protocol No. 1 (protection of property). In a judgment of 20 January 2011, the Court held by six votes to one that there has been no violation of Article 9 in this case.

In its decision of 26 June 2012, the Grand Chamber saw no reason to depart from its findings in previous judgment and found that the obligation of landowners to tolerate hunting on their property ‘imposes a disproportionate burden’ upon those who, like Mr Herrmann, are opposed to hunting for ethical reasons, and that therefore there was in the case a violation of Article 1 of Protocol No. 1. The Court further held that it it did not have jurisdiction to examine the complaints under Articles 8 and 11, taken alone and in conjunction with Article 14, and that it was not necessary separately to examine the complaints under Articles 14 and Article 9. The Court awarded no pecuniary damages, but accessed non-pecuniary damages and costs.

Chiragov and Others v. Armenia (no. 13216/05) – Grand Chamber Admissibility Decision 9 January 2012. Azerbaijani nationals allege that they were forced to leave their homes as a result of actions of Armenia-backed Karabakh forces and have been prevented from returning to their properties by these occupying forces. They complain under Article 1, Protocol 1 of interference with the right to peaceful enjoyment of their possessions. They further complain, under Article 8, of infringement of the right to respect for their private and family life, under Article 13 of lack of effective remedy, and under Article 14 of discrimination on the basic of ethnic and religious affiliation. After relinquishment of jurisdiction to the Grand Chamber on 9 March 2010, the Court held a hearing in this case on 15 September 2010. On 9 January 2012, the Grand Chamber declared the application admissible.

Sargsyan v. Azerbaijan (no. 40167/06) – Grand Chamber Admissibility Decision 9 January 2012.  The applicant, Mr Minas Sargsyan, an ethnic Armenian, was at the time of his death in 2009 a resident of Yerevan. On his behalf, his widow and children pursued his application. Applicant complained before the Court, citing ECHR Article 1 (protection of property) and Article 8 (respect for private and family life), that he was forced by the Azerbaijani Government to flee from his home in 1992 during the conflict over the Nagorno-Karabakh (NKAO) and was denied access to his property. He further complained under Article 3 (prohibition of inhuman or degrading treatment) and Articles 8 (private and family life) and 9 (freedom of religion), as his not being able to visit the graves of close relatives (cemeteries had been destroyed) and not knowing what happened to them but aware they were in mortal danger caused him severe suffering and distress (visiting and maintenance of cemeteries being one of his religious customs). Finally, he submitted, under Article 14 (prohibition of discrimination) that only ethnic Armenians living in Azerbaijan were the target of violence, lack of legal redress for loss of property, and destruction of cemeteries.

On 11 March 2010, jurisdiction in the case was relinquished by the Chamber to which it was assigned, in favor of the Grand Chamber, which heard the case on 15 September 2010. On 1 January 2012, the Grand Chamber declared the application partly admissible, finding that the applicant’s widow and children were entitled to pursue the application before the Court. The Court declared inadmissible the applicant’s complaint concerning the alleged destruction of Armenian graves in Azerbaijan in general. It declared admissible the remainder of the applicant’s complaints without prejudging the merits of the case. The Court will deliver its judgment at a later date.

S.H. and Others v. Austria (no. 57813/00) — Grand Chamber Judgment 3 November 2011.  {Webcast of the 23 February 2011 Hearing} This case concerns the complaint by two married couples from Austria about the ban on medically-assisted procreation techniques. Suffering from infertility, they wished to use medically-assisted procreation techniques which are not allowed under Austrian law. In an application filed with the Court in May 2000, the couples complained that the prohibition by the Austrian law of sperm and ova donation for in vitro fertilization violated their right to respect for family life under Article 8 and that the difference in treatment compared to couples who wished to use medically-assisted procreation techniques, but did not need to use ova or sperm donation for in vitro fertilization, amounted to a discriminatory treatment, in violation of Article 14.

In its Chamber judgment of 1 April 2010, the Court held, by five votes to two, that there had been a violation of Article 14 in conjunction with Article 8 as regards the prohibition of in vitro fertilization with the use of ova from a donor, which affects the couple H.E.-G and M.G. and, by six votes to one, that there had been a violation of Article 14 in conjunction with Article 8 as regards the prohibition of in vitro fertilization with the use of sperm from a donor, which affects the couple S.H and D.H. On 4 October 2010, the case was referred to the Grand Chamber at the Austrian Government’s request. A Grand Chamber hearing took place on 23 February 2011.

In its Grand Chamber judgment the Court held that the right of a couple to conceive a child and to make use of medically-assisted procreation for that purpose was protected by Article 8, as such a choice was an expression of private and family life, and the Court found it reasonable to approach the case as one involving an interference by the State with the applicants’ right to respect for their family life. As regards the State’s margin of appreciation in regulating matters of artificial procreation, the Court observed that there was today a clear trend in the legislation of Council of Europe member States towards allowing gamete donation for the purpose of in vitro fertilization. However, emerging European consensus was not based on settled principles but rather reflected a stage of development within a particularly dynamic field of law and thus did not decisively narrow the margin of appreciation of the State. The Court therefore considered that the margin of appreciation to be given to Austria had to be a wide one.

The Court concluded that Austria had not, at the relevant time, exceeded the margin of appreciation afforded to it, neither as regards the prohibition of ovum donation for the purposes of artificial procreation nor as regards the prohibition of sperm donation for in vitro fertilization. There had accordingly been no violation of Article 8 in the applicants’ case. In view of its findings under Article 8, the Court did not consider it necessary to examine the complaint separately under Article 14 in conjunction with Article 8.

Judge de Gaetano expressed a separate opinion. Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria expressed a joint dissenting opinion.

Referrals to Grand Chamber rejected in Siebenhaar v. Germany (no. 18136/02), Gisayev v. Russia (no. 14811/04), and Milanović v. Serbia (no. 44614/07).

Bayatyan v. Armenia (no. 23459/03) — Grand Chamber Judgment, 7 July 2011.   Held:  The Applicant’s conviction for draft evasion was in violation of the ECHR Article 9 guarantees of freedom of religion or belief.

A Jehovah’s Witness, the applicant Mr. Bayatyan refused to perform military service for conscientious reasons when he became eligible for the draft in 2001, though he was prepared to do alternative civil service. The authorities informed him that since there was no law in Armenia on alternative service, he was obliged to serve in the army. He was convicted of draft evasion and sentenced to prison. Mr. Bayatyan complained that his conviction violated his rights under Article 9 and submitted that the Article should be interpreted in the light of present-day conditions, namely the fact that the majority of Council of Europe Member States have recognised the right of conscientious objection.

In its Third-Section Chamber Judgment of 27 October 2009, the Court, following established case law of the European Commission of Human Rights, found that Article 9 must be read in conjunction with Article 4 (prohibition of slavery and of forced or compulsory labour), which left the choice of recognizing conscientious objection to each State that had ratified the Convention. Article 9 did not guarantee a right to refuse military service on conscientious grounds and was therefore inapplication in Mr. Bayatyan’s case.

On 10 May 2010 the case was referred to the Grand Chamber at the request of the applicant. A Grand Chamber hearing was held on 24 November 2010.

In its judgment of 7 July 2011, the Grand Chamber held that Mr. Bayatyan’s conviction for draft evasion was in violation of Article 9, leaving open the question of whether the conviction was lawful. Reasoning that at the time of Mr. Bayatyan’s case the majority of COE member states, including Armenia, had already recognized in law and practice the right to conscientious objection, and therefore Article 9 should no longer be read in conjunction with Article 4. Mr. Bayatyan’s objection to military service was judged to represent a conviction of “sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.”

Under Article 41, the Court held that Armenia should pay Mr. Bayatyan EUR 10,000 in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.  

Lautsi and Others v. Italy  (no. 30814/06) — Grand Chamber Judgment, 18 March 2011. The applicants are Italian nationals, Finnish-born Ms. Soile Lautsi and her two sons, Dataico and Sami Albertin, who live in Italy. During the school year 2001-2001 the sons attended a State school where a crucifix was attached to the wall of each classroom. The first applicant and her husband raised the question of the presence of religious symbols in the classrooms. When the school’s governors decided to keep the religious symbols in the classrooms, the first applicant brought proceedings in the Administrative Court, complaining of infringement of the principle of secularism. Her argument was found to be ill-founded because the presence of crucifixes in the classroom was based on royal decrees of 1924 and 1928. The Administrative Court referred the issue of constitutionality to the Constitutional Court, which found the question inadmissible, since the decrees were regulations, not law subject to constitutional review.

On 17 March 2005 the Administrative Court dismissed the application lodged by Ms. Lautsi, holding that the provisions of the royal decrees in question were still in force and that the presence of crucifixes in State-school classrooms did not breach the principle of the secular nature of the State, which was “part of the legal heritage of Europe and the western democracies.” The court took the view that the crucifix was a symbol of Christianity in general rather than of Catholicism alone, so that it served as a point of reference for other creeds. The court further identified the crucifix as a historical and cultural symbol, possessing an “identity-linked value” for the Italian people, and serving as a symbol of a value system underpinning the Italian Constitution.

A further appeal by Ms. Lautsi resulted in confirmation by the Consiglio di Stato that the crucifixes symbolized civil values characteristic of Italian civilization and compatible with the principle of secularism, namely “tolerance, affirmation of one’s rights, the autonomy of one’s moral conscience vis-à-via authority, human solidarity, and the refusal of any form or discrimination,” which could fulfill a highly educational function.

The applicant, relying upon Article 2 of Protocol No. 1 (right to education) and Article 9 (freedom of thought, conscience, and religion), and upon Article 14 (prohibition of discrimination), made application to the European Court of Human Rights in July 2006. In a Chamber Judgment of 3 November 2009, the Court held, unanimously, that there had been violations of each of these provisions. The Italian government requested a Grand Chamber hearing, which took place on 20 July 2010.

In its decision announced on 18 March 2011, the Grand Chamber found, by 15 votes to 2, no violation of Article 2 of Protocol 1: “The Court found that, while the crucifix was above all a religious symbol, there was no evidence … that the display of such a symbol on classroom walls might have an influence on pupils.” The subjective perception of the applicant was not sufficient to establish a breach of Article 2 of Protocol 1. Moreover, “the decision whether crucifixes should be present in classrooms was, in principle, a matter falling within the margin of appreciation of the State, particularly where there was no European consensus,” though that margin of appreciation “went hand in hand with supervision by the Court, whose task was to satisfy itself that the choice did not amount to a form of indoctrination.” The Court further concluded that no further issue arose under Article 9 and that there was no cause to examine the case under Article 14.

Judges Bonello, Power and Rozakis each expressed a concurring opinion. Judge Malinverni expressed a dissenting opinion, joined by Judge Kalaydjieva.

A, B, and C v. Ireland (no. 25579/05) — Grand Chamber Judgment, 16 December 2010.  Applicants are two Irish nationals and one Lithuanian national who complained, inter alia, under Article 8 (right to private and family life) of the prohibition of abortion in Ireland for health and well-being reasons. The third applicant’s main complaint concerned the alleged failure to implement the constitutional right to an abortion in Ireland in the case of the risk to the life of the woman. Applicants claimed that the impossibility of having an abortion in Ireland made the procedure, which they sought elsewhere, unnecessarily expensive, complicated, and traumatic and that the Irish restrictions stigmatized and humiliated them, risked damaging their health, and, in the third applicant’s case, her life. In the case of the first and second applicants, the Court found that the prohibition on the termination of the pregnancies did represent an interference with their right to respect for their private lives, but that interference had been in accordance with the law and had pursued the legitimate aim of protecting public morals as understood in Ireland. In the case of the third applicant, however, the Court noted that she had a rare form of cancer and feared it might relapse as a result of her being pregnant. The Court considered that the establishment of any such risk to the applicant’s life clearly concerned fundamental values and essential aspects of her right to respect for her private life. It went on to find that the only non-judicial means for determining such a risk on which the Government relied, the ordinary medical consultation between a woman and her doctor, was ineffective and that the applicant’s recourse to the constitutional courts for determination of the lawfulness of an abortion was also ineffective. The third applicant was awarded EUR 15,000 in respect of non-pecuniary damage.

Chiragov and Others v. Armenia (no. 13216/05) — Communicated 13 September 2010.  Jurisdiction in the case was relinquished to the Grand Chamber, which held a hearing on Wednesday 15 September 2010.  Azerbaijani nationals allege that they were forced to leave their homes as a result of actions of Armenia-backed Karabakh forces and have been prevented from returning to their properties by these occupyint forces. They complain under Article 1, Protocol 1 of interference with the right to peaceful enjoyment of their possessions. They further complain, under Article 8, of infringement of the right to respect for their private and family life, under Article 13 of lack of effective remedy, and under Article 14 of discrimination on the basic of ethnic and religions affiliation.

Sargsyan v. Azerbaijan (no. 40167/06) — Communicated case of 6 April 2007, jurisdiction relinquished to Grand Chamber and heard 15 September 2010.  Applicant, an ethnic Armenian, was at the time of his death in 2009 a resident of Yerevan. On his behalf, his widow and children pursue his application. Applicant complained before the Court, citing ECHR Article 1 (protection of property) and Article 8 (respect for private and family life), that he was forced by the Azerbaijani Government to flee from his home in 1992 during the conflict over the Nagorno-Karabakh (NKAO) and was denied access to his property. He further complained under Article 3 (prohibition of inhuman or degrading treatment) and Articles 8 and 9 (freedom of religion), as his not being able to visit the graves of close relatives (cemeteries had been destroyed) and not knowing what happened to them but aware they were in mortal danger caused him severe suffering and distress (visiting and maintenance of cemeteries being one of his religious customs). Finally, he submitted, under Article 14 (prohibition of discrimination) that only ethnic Armenians living in Azerbaijan were the target of violence, lack of legal redress for loss of property, and destruction of cemeteries. On 11 March 2020, jurisdiction in the case was relinquished by the Chamber to which it was assigned, in favor of the Grand Chamber, which heard the case on 15 September 2010. The judgment will be announced at a later date.

Neulinger and Shuruk v. Switzerland (no. 41615/07) — Grand Chamber Judgment, 6 July 2010. The applicants, Isabelle Neulinger and her son Noam Shuruk, are Swiss nationals. The applicant settled in Israel where she married and had a child with an Israeli national. Following fears that her husband would take their son to the camp of a religious sect, the applicant prepared to flee Israel with the child, when her husband filed with the Israeli court to prevent the child from leaving Israel. Subsequently, the applicant fled Israel and returned to Switzerland, despite the court order. The applicant’s ex-husband proceeded to file with the court in Switzerland for the return of the child to Israel. Following a long legal battle in the Swiss courts, the applicant was ordered to return the child to its father. The applicant filed with the ECtHR, claiming a child psychologist had found that returning the child to Israel without her mother would cause grievous psychological harm to the child. Consequently, the Court held, by 16 votes to one, that there would be a violation of Article 8 in respect of both applicants if the decision ordering Noam’s return to Israel were to be enforced.