European Court for Human Rights
- W.H. v. Sweden (2014). A woman seeking asylum in Sweden was denied asylum by the Swedish Migration Board, the Migration Court, and denied an appeal of the previous decisions by the Migration Court of Appeals. The migration courts found that although the applicant belonged to a minority (Mandaean) in Iraq, the one threat she had received several years ago was not based on her minority beliefs but on her marital status (as she was divorced) and therefore her return to Iraq could not be deemed unsafe. The courts also found that the situation in Iraq did not constitute grounds for asylum nor that she was still being searched for in Iraq. Swedish law (the Aliens Act (Utlänningslagen, 2005:716)) states that "an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden." Moreover, the Aliens Act continues, "if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6)."The applicant brought this suit complaining that her return to Iraq would constitute a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("No one shall be subjected to torture or to inhuman or degrading treatment or punishment.") The applicant lost this suit as well, as the court held that her circumstances would not prevent her from settling safely and reasonably in the Kurdistan Region of Iraq once deported from Sweden. The evidence did not show that the applicant would face a risk of treatment prohibited by Article 3 in the Kurdistan Region. The Court looked at precedent holding that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person's return to that country (F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009)). Taking into account the international and national reports available at the time of the decision, the Court saw no reason to alter the position taken four years before. The Court gave deference to the Swedish Migration Court's decision and found no violation of Article 3. According to the Court, "Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens."
- O'Keeffe v. Ireland (2014). Louise O'Keeffe was
repeatedly sexually abused by her school principal during the 1970s.
When these events were reported to the police in 1996, the complete
police investigation revealed that the principal had sexually abused
twenty-one former students during a ten-year period. In total, the
principal was charged with 386 criminal offences of sexual abuse.
O'Keeffe brought a civil action against the Minister for Education and
the Attorney General of Ireland, claiming that the State had vicarious
liability for the personal injury she suffered as a result of the abuse
in the public school. The High Court ruled that the state did not have
vicarious liability for its employee's actions, and the Supreme Court
dismissed O'Keeffe's appeal. In January 2014, O'Keeffe brought a case
to the European Court of Human Rights, alleging violations of Article 3
(torture or inhuman or degrading treatment) of the European Convention
on Human Rights, and Article 13, alleging that she did not have an
effective domestic remedy.
The European Court of Human Rights held the following: (1) the Irish
State failed to meet its positive obligation, in violation of Article 3;(2) there was no violation of the procedural obligations under Article 3
since an effective official investigation into the ill-treatment of the
applicant had been carried out in 1995 once the a complaint was made by
another former pupil to the police;(3) the applicant did not have an
adequate remedy available to her regarding her Article 3 complaints, in
violation of Article 13;and (4) the applicant was awarded 85,000 euros
for the costs and expenses of the proceedings. As a result of this
case, Irish Prime Minister Enda Kenny gave an apology to O'Keeffe, and,
in August 2014, the Irish government submitted an Action Plan to the
Council of Europe setting out the measures that have been taken since
this ECtHR decision.
- Rantsev v. Cyprus and Russia (2010). Trafficking. In its first case regarding human trafficking, the ECHR found that Russia and Cyprus had violence Article 4 of the European Convention on Human Rights (prohibiting slavery, servitude, and forced or compulsory labour). The case concerns the death of a twenty year-old Russian woman, Oxana Rantseva, who was trafficked from Russia to Cyprus, a destination country for women trafficked from Eastern and Central Europe for the purpose of sexual exploitation. The Court found that Cyprus, the State of destination in this case, had not only failed to protect Ms Rantseva from being trafficked or from being unlawfully detained prior to her death, but it had also failed to adequately investigate her death. Russia, the state of origin, was found by the Court to have failed to adequately investigate the way in which Ms Rantseva had been trafficked from its borders. The Court elaborated on the positive obligations of states in the context of Article 4 with respect to trafficking, holding that there is a positive obligation on states to adopt appropriate and effective legal and administrative frameworks, to take protective measures, and to investigate trafficking where it has already occurred.
- Opuz v. Turkey (2009). State failure to protect victims from domestic violence. Applicant brought this case against Turkey, alleging failure to protect her and her mother from domestic violence, violence which resulted in her mother’s death and her own mistreatment. The victim and her mother were repeatedly abused and threatened by the victim’s husband, abuse which was medically documented. The victim’s husband and his father were at one point indicted for attempted murder against the two women, but both were acquitted. The abuse continued after the acquittal and eventually resulted in the husband’s father killing the victim’s mother. The husband’s father was tried and convicted for intentional murder, but because he argued provocation and exhibited good behavior during the trial, his sentence was mitigated and he was released pending an appeal. Taking into consideration regional and international treaties as well as the domestic situation in Turkey, the ECHR held that Turkey violated Articles 2, 3, 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR ordered Turkey to pay the victim non-pecuniary damages and costs.
- Collins and Akaziebie v. Sweden (2007). Immigration and forced genital mutilation. The first applicant, the mother, filed for asylum upon arriving in Sweden, claiming she had fled Nigeria while pregnant with her daughter, the second applicant, in an attempt to flee the female-genital mutilation (“FGM”) that would have been performed on her during childbirth if she stayed in Nigeria. The Swedish Migration Board rejected the asylum application, explaining that FGM was not grounds for asylum, and that FGM was outlawed by Nigerian law so it was unlikely the first applicant would be submitted to the procedure upon return to Nigeria. The Swedish Aliens Appeal Board rejected the applicant’s appeal, rejecting her argument that FGM was a deep-rooted Nigerian tradition, carried out despite modern law. Following several more attempts within Sweden to be granted asylum, the applicants filed a complaint with the ECHR, alleging that if they were returned to Nigeria, they would face a high likelihood of being submitted to FGM. The argued this would violate Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR rejected the complaint, ruling that the applicants had failed to “substantiate that they would face a real and concrete risk of being subjected to female genital mutilation upon returning to Nigeria.
- M.C. v. Bulgaria (2003). Rape of minor. The victim, a 14-year old, alleged she was raped by two men, but an ensuing investigation found insufficient evidence of the girl having been compelled to have sex. The investigation found that force was not used and that therefore rape had not occurred. Before the ECHR, therefore, the victim alleged that Bulgarian law failed to protect her because it required force to be present for rape to have occurred, a higher standard than in other countries, where for example, only non-consent was necessary. She also challenged the thoroughness of the investigation. The ECHR found that Bulgaria violated its positive obligations under Articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It ordered Bulgaria to pay the victim non-pecuniary damages and costs.
- Case of Burghartz v. Switzerland (1994). Gender-based law on marital names. The Court found no legal justification for a law to require married women to take their husbands' surnames.
- Case of Schmidt v. Germany (1994). Gender-based service-or-tax requirement. The Court found a law that required men only to serve as firefighter and required women to pay a tax was discriminatory in violation of the ECHR.
- Case of Abdulaziz, Cabales and Balkandali v. the United Kingdom (1985). Gender-based immigration rights. Three lawfully and permanently settled residents of the UK challenged the Government’s refusal to permit their husbands to join or remain with them on the basis of the 1980 immigration rules in force at the time. The rules applied stricter conditions for the granting of permission for husbands to join their wives than vice versa. These conditions did not apply to the wives of male permanent residents. The Court found that Article 8 encompassed the right to establish one’s home in the State of one’s lawful residence, and that being forced to either move abroad or be separated from one’s spouse was inconsistent with this principle. On this basis the applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and, in the case of Mrs. Balkandali, birth, they had been victims of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants claimed there was no objective and reasonable justification for the difference in treatment, rather the Government’s claims ignored the modern role of women and the fact that men may be self-employed and create rather than seek jobs, as in the case of Mr. Balkandali.
- Case of Airey v. Ireland (1979). Family law, domestic violence and the right of access to court. Petitioner, a domestic violence survivor, could not find legal assistance to appear before a court. The Court ruled that member states must guarantee effective access to the courts.