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Excessive formalism as a restriction on the right of access to justice

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By George Kazoleas, Lawyer Formalism may be inherent in laws, jurisprudence and in procedural law in particular, since the rules of law are specific forms that must be applied in real situations. Excessive formalism, however, which characterizes many judicial systems, can sometimes deprive citizens of their right to access the justice in order to assert their rights. Strict procedural rules that most commonly concern deadlines, the limitation period of claims, the method of filing and deficiencies or errors of Court documents deny in essence the right to go to Court. The European Court of Human Rights (“ECtHR”) has issued a number of judgments condemning the law of several countries for excessive formalism in certain cases. Despite being a lawyer, he was not allowed to appeal for himself A typical example is the case of  Maširević v. Serbia (No 30671/08, February 11th, 2014,  in which the applicant, a practicing lawyer, had brought an action before a local Court seeking payme

The authorities’ refusal to legally recognise a change of gender identity in the absence of surgery violated the right to respect for private & family life

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In Chamber judgment (19.1.2021) in the case of X and Y v. Romania (applications nos. 2145/16 and 20607/16) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.  The case concerned the situation of two transgender persons whose requests for recognition of their gender identity and for the relevant administrative corrections to be made were refused on the grounds that persons making such requests had to furnish proof that they had undergone gender reassignment surgery. The Court observed that the national courts had presented the applicants, who did not wish to undergo gender reassignment surgery, with an impossible dilemma: either they had to undergo the surgery against their better judgment – and forego full exercise of their right to respect for their physical integrity – or they had to forego recognition of their gender identity, which also came wit

GDPR fine against housing company for unlawful video surveillance in an apartment building

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The Swedish Data Protection Authority has issued an administrative fine of SEK 300,000 (about 30,000 euros) against a housing company for unlawful video surveillance in an apartment building. The Swedish Data Protection Authority (DPA) received a complaint concerning video surveillance in an apartment building belonging to the housing company Uppsalahem. The complainant claimed that there was a surveillance camera in the apartment house directed towards the complainant's front door. The DPA's audit shows that the housing company had set up a surveillance camera monitoring the floor where the complainant lives. The camera's monitoring area clearly covered two apartment doors, one of which belongs to the complainant and the other belonging to a resident whom has been subject to disturbances and harassment. The housing company states that the purpose of the video surveillance was to resolve disturbances having occurred in the stairwell over time. "The way the vide

Refusal to issue a passport on account of an unpaid bank debt (ECHR)

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In Chamber judgment (8.12.2020) in the case of Victor Rotaru v. the Republic of Moldova (application no. 26764/12) the European Court of Human Rights held, unanimously, that there had been a violation of Article 2 of Protocol No. 4 (freedom of movement) to the European Convention on Human Rights.  The case concerned the domestic authorities’ refusal over several years to issue the applicant with a passport, on the grounds that he had failed to repay a debt owed to a bank. The Court noted that the civil-registration authority had refused to issue the applicant with a passport after finding that the sole condition imposed by law had been met, namely the nonrepayment of a debt. The duration of the ban on obtaining a passport had not been specified and it did not appear that the proportionality of the measure had been reviewed at any stage. The domestic legislation, as applied in the present case, had not provided the applicant with sufficient procedural guarantees to prevent the risk of a

The first decision of a european court for Covid-19 health crisis: Why the application was rejected

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In its decision in the case of Le Mailloux v. France (application no. 18108/20) the European Court of Human Rights has unanimously declared the application inadmissible. The case concerned the applicant’s objections to the handling by the French State of the Covid-19 health crisis. The Court observed that the applicant was complaining about the measures taken by the French State to curb the propagation of the Covid-19 virus among the whole population of France, but had not shown how he was personally affected. It reiterated that it did not recognise an actio popularis: meaning that applicants cannot complain about a provision of domestic law, a domestic practice or public acts simply because they appear to contravene the European Convention on Human Rights. In order for applicants to be able to claim to be a victim, they must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur. Relying on Article 2 (right to life), Articl

AML Compliance in post-Brexit world

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By Christina Poursanidou, Lawyer/Legal and Compliance Officer  Ten days before the end of the United Kingdom (UK) transition period to leave the European Union (EU), there is still uncertainty on whether the two sides will agree on a trade deal agreement. During the transition period the UK continue to apply the EU Anti-Money Laundering (AML) Directives, but from 1st of January 2021 new challenges and concerns for the global effort against money laundering appear. With this article, we will set out the impact of Brexit to the fight against money laundering both for the UK and to EU countries. United Kingdom is historically considered as one of the countries with the strictest AML laws. If it exits the EU without a trade deal, the UK Government has to decide whether it will continue to apply the EU Directives or not. Even from January 2020, the 5th AML Directive (5AMLD) came into force in the UK, while the majority of the provisions of the 6th AML Directive (6AMLD) are already include

Implementing ECHR judgments: New thematic factsheet on judicial independence

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The Department for the Execution of Judgments of the European Court of Human Rights (ECHR) has published a new factsheet focusing on cases related to the independence and impartiality of the judicial system. The factsheet summarises measures reported by 21 member states to safeguard and reinforce the independence and impartiality of their national judicial systems in response to ECHR judgments concerning the right to a fair trial. It includes a section on the independence and impartiality of prosecutors, which form an integral part of European judicial systems. This is the fifth in a series of  thematic factsheets  on the implementation of ECHR judgments. Previous examples cover constitutional matters, effective investigations into death or ill-treatment caused by the security forces, freedom of religion and the environment. Some of the factsheets are available in other languages in addition to English and French. (coe.int) The factsheet "INDEPENDENCE AND IMPARTIALITY OF THE JUD

Artificial intelligence in justice systems : Αn inevitable revolution is coming

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By George Kazoleas, Lawyer LL.M. The digitization of justice and the increasing use of forms of e-justice by legal systems is not only a reality but also a necessity that arose from the unprecedented conditions created and continues to create the covid-19 pandemic. An admittedly more advanced area of digitalisation of justice is artificial intelligence in judicial systems, which, as many experts predict, is the sure future in the way justice is administered. Ιn this matter, the Council of EU [1]  notes that the deployment of artificial intelligence systems in the justice sector is already being researched and developed in the EU and that the practical implementation of such systems is already imminent in some Member States. The Council also notes that a sufficient level of digitalisation is also a prerequisite for the use of artificial intelligence applications. It is also emphasized, that artificial intelligence systems in the justice sector may in the future be capable of performing

First female Registrar in the history of the ECHR: Swearing-in ceremony

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Marialena Tsirli, first female Registrar in the history of the European Court of Human Rights, elected on 7 September 2020 for a five-year term of office, was sworn in on 30 November 2020. Article 17 of the Rules of Court governs the Registrar’s functions. The Registrar has overall responsibility for both the administrative and the judicial activities of the Registry under the authority of the President of the Court. Marialena Tsirli succeeded Roderick Liddell, who has been Registrar of the Court since 1 December 2015. A Greek national, born in 1967 in Thessaloniki, Marialena Tsirli studied law at the National and Kapodistrian University of Athens and holds a master’s degree and a doctorate from the Robert Schuman University of Strasbourg. She was legal officer (1994-1998) in the Secretariat of the former European Commission of Human Rights. Within the Registry of the European Court of Human Rights, she served successively as legal officer (1998-2004), Head of Division (2004-2010

Money laundering scandals of high profile European banks during the first half of 2020

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By Christina Poursanidou, Lawyer /  Legal and Compliance Officer  During 2019, the total number of fines imposed globally for violation of money laundering regulations was estimated to €370 million. Strangely enough, such fines did not worry bank CEOs and boards, which instead of improving their anti-money laundering (AML) procedures, keep on operating with insufficient due diligence standards, improper management of AML measures and   poor transaction monitoring. The result?   €600 million in AML monetary penalties within the first six months of 2020. Within the context of the European Union, during 2020 National Financial Supervisors have imposed heavy fines to a number of credit institutions, such as Skandinaviska Enskilda Banken AB , known as SEB   (€125 million), Deutsche Bank (€13.5 million), Commerzbank (€41 million) and Swedbank (€320 Million). These money laundering cases involving high-profile EU financial institutions have highlighted that the EU’s approach to combatti