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Showing posts from 2021

The abuse of power & influence of credit institutions against borrowers and the moral issue of exploiting their psychological state when concluding loan agreements

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by Giorgos Kazoleas, Lawyer LL.M. At the stage before concluding a loan agreement between the credit institution and the prospective borrower, the inequality regarding the negotiating power of the parties reaches its peak in order to complete the agreement. The pressure to agree on the contract clauses, which usually reflect the imbalance of rights and obligations between the two parties and several of which are abusive, is not a neutral pressure, but the pressure of the financially and authoritatevely strong against the financially weak and mentally vulnerable. And this is despite the fact that the basic terms have previously been judged by case law or even legislated as abusive. One of the ways to avoid abuse by the the credit institution's position is the requirement of good faith, in the assessment of which, special attention must be paid to the negotiating power of both parties. It should be also assessed whether the consumer was motivated in any way to accept the clause and

Child adoption without taking account of the mother’s wishes breached her human rights (ECtHR)

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In its Grand Chamber judgment in the case of Abdi Ibrahim v. Norway (application no. 15379/16) 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 decision by the Norwegian authorities to allow the adoption of a child by a foster family against his mother’s wishes. The mother, a Somali national who had moved to Norway, did not ask for her son’s return as he had spent a long time with his foster parents, but wished for him to maintain his cultural and religious roots.  The Court decided to examine the applicant’s wish to have her son brought up in line with her Muslim faith as an integral part of her complaint under Article 8, as interpreted and applied in the light of Article 9 (freedom of religion). It was not necessary to examine separately any alleged failures to comply with Article 9.  The Court pointed out that various in

The “digital dimension” of violence against women and girls

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This year’s  UN International Day for the Elimination of Violence against Women  (25 November) shines a spotlight on the digital dimension of violence against women and girls. From body shaming (mocking someone’s bodily shape, size, or appearance) and cyber-flashing (sending unsolicited sexual images online) to doxing (sharing online a target’s personal information without consent), the rapid development of information and communication technologies also facilitates new avenues for violence against women and girls, exposing them to more risks of being abused. In its first recommendation on the “ digital dimension ” of violence against women, the Council of Europe’s Group of Experts on Action against Violence against Women and Domestic Violence ( GREVIO ) defines and outlines the problem of both gender based violence against women committed online and technology-enabled attacks against women, such as legally obtainable tracking devices that enable perpetrators to stalk their victims.

The pre-trial detention of 427 judges in Turkey was illegal - Decision of the ECtHR

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The European Court of Human Rights (ECtHR) has ruled against Turkey on 23.7.2021 for the illegal pre-trial detention of 427 Turkish judges following the failed coup attempt in July 2016. The applicants are 427 Turkish nationals, all members of the Court of Cassation or the Supreme Administrative Court, or judges in lower courts or prosecutors at the time of the events giving rise to the applications.  The case concerns the arrest and pre-trial detention of the applicants, all of whom were sitting as judges or prosecutors at the time, in the aftermath of the military coup attempt of 15 July 2016, on suspicion of being members of an organisation described by the Turkish authorities as the “Fetullahist Terrorist Organisation / Parallel State Structure” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması).  Relying on Article 5 § 1 (right to liberty and security), the applicants complain that they were placed in pre-trial detention in breach of the domestic law governing the arrest and p

A finding of civil liability against the author of a historical book for remarks deemed defamatory by the Italian courts did not breach the ECHR

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In its Chamber judgment in the case of Marinoni v. Italy (application no. 27801/12) the European Court of Human Rights held, unanimously, that there had been no violation of Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights, and no violation of Article 10 (freedom of expression).  The case concerned a finding of civil liability against the author of a book on account of two sets of remarks deemed by the Italian courts to be defamatory. The book included a reconstruction of the events preceding the summary execution of 43 captured soldiers of the Italian Social Republic (an episode known as the “strage di Rovetta”).  The historical account was overlaid with the author’s private and personal recollections centred on his family life. The applicant was acquitted in the criminal proceedings at first instance but was found civilly liable following an appeal by the civil parties.  The Court held that the domestic courts had not used language liable to cast do

Ombudsman calls for EU access to documents law to be modernised

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European Ombudsman Emily O’Reilly has called for the EU’s access to documents law, which is twenty years old this year, to be updated to reflect the reality of modern communications. Speaking at a conference she is hosting today on the future of Regulation 1049/2001, Ms O’Reilly emphasised the importance of the law for enabling the public to hold the EU account, and called for its modernisation: “This cornerstone of EU transparency comes from a radically different era, predating many modern tools such as smartphones, instant messaging and big data. It needs to catch up with today’s reality while maintaining its core strengths. The law also needs to be aligned more closely with the citizen rights enshrined in the Lisbon Treaty, encourage greater pro-active transparency and take account of important case-law concerning transparent decision making. This is a core issue of good governance. It is about keeping public institutions accountable throughout the entire chain of EU decisio

Implementing ECHR judgments: New factsheet on migration and asylum

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The Council of Europe’s Department for the Execution of Judgments of the European Court of Human Rights has published a new  thematic factsheet  on cases related to migration and asylum.   The factsheet summarises measures reported by 23 member states to protect and further strengthen migration- and asylum-related rights in response to 66 different judgments from the ECHR. It covers topics including access to territory and forced returns, the reception and protection of migrants and asylum seekers, protection from discrimination and hate crime, family life and family reunification and the detention of migrants and asylum seekers. This is the eleventh in a series of  thematic factsheets  on changes to national law, policy and practice across Europe linked to the implementation of ECHR judgments. Previous factsheets cover constitutional matters, effective investigations, freedom of religion, the environment, the independence and impartiality of the judicial system, children’s rights, f

Infringement proceedings against 6 EU member states for failing to correctly transpose EU rules on access to a lawyer and the right to communicate upon arrest

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Rights in criminal proceedings: European Commission calls on Estonia , Greece, Hungary, Lithuania, Luxembourg and Portugal to ensure correct transposition of EU rules on the right of access to a lawyer and to communicate upon arrest. The Commission has decided to open infringement proceedings against Estonia, Greece, Hungary, Lithuania, Luxembourg and Portugal by sending letters of formal notice for failing to correctly transpose EU rules on access to a lawyer and the right to communicate upon arrest ( Directive(EU) 2013/48 ). The Directive is part of the EU's legal framework on common minimum standards for fair trials ensuring that the  rights of suspects and accused persons  are sufficiently protected. The Commission considers that certain national transposition measures notified by the six Member States fall short of the requirements of the Directive. In particular, this includes possible derogations from the right of access to a lawyer as well as derogations from the right to

Poland: no more women should die because of the restrictive law on abortion

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A year after the Polish Constitutional Tribunal’s ruling, members of the European Parliament are calling on the government to lift the ban on abortion that puts women’s lives at risk. Over the last 10 months, only 300 Polish women accessed abortion services in hospitals on the grounds of a threat to life and health. Last September, a 30-year-old Polish woman died of septic shock because her doctors did not perform a life-saving abortion, waiting instead for the foetus to die because of the restrictions on legal abortions in Poland. In a resolution adopted on Thursday by 373 votes in favour, 124 against and 55 abstentions, MEPs call on the Polish government to ensure that no more women in Poland die because of this restrictive law. They reiterate their strong condemnation of the illegitimate Constitutional Tribunal’s ruling of 22 October 2020 imposing a near-total ban on abortion and putting women’s health and lives at risk. They urge the Polish government to swiftly and fully guarant

Τhe procedure for appointing judges was not independent and impartial - Violation of right to a fair hearing (ECtHR)

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In its Chamber judgment of 8.11.2021 in the case of Dolińska-Ficek and Ozimek v. Poland (application nos. 49868/19 and 57511/19) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights. The case concerned complaints brought by two judges that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, which had decided on cases concerning them, had not been a “tribunal established by law” and had lacked impartiality and independence. They complained in particular that the Chamber of Extraordinary Review and Public Affairs, one of two newly created chambers of the Supreme Court, had been composed of judges appointed by the President of Poland on the recommendation of the National Council of the Judiciary (“the NCJ”), the constitutional organ in Poland which safeguards the independence of courts and judges and which has been the subject of controversy s

Advice on Crypto-assets : Obligations of the authorised advisors under the proposed European Regulation on Markets in Crypto-assets

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By George Kazoleas, Lawyer LL.M. The proposed European Regulation on Markets in Crypto-assets, and amending Directive (EU) 2019/1937, published in September 2020, introduces new legislation on crypto-assets (a digital representation of values or rights that can be stored and traded electronically). The purpose of the proposed regulation is to safeguard financial stability as well as to protect investors from potential risks. The new regulation aims to provide legal clarity and legal certainty for crypto-asset issuers and providers. It is also noted that the new rules will allow operators authorised in one Member State to provide their services across the EU ("passporting"). One of the regulated areas of the proposed legislation is the activity of crypto advisors. Any person that provides crypto-asset services on a professional basis should be considered as a ‘crypto-asset service provider’. Providing advice on crypto-assets is explicitly part of the meaning  of ‘crypto-as

Alleged bullying of whistle-blowing prison guard - Violation of right to respect for private life (ECtHR)

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In its Chamber judgment in the case of Špadijer v. Montenegro (application no. 31549/18) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. The case concerned the alleged bullying of a prison guard following her reporting an incident involving male prison guards coming into the women’s prison where she worked and their inappropriate contact with female prisoners, and her attempts to address this with the authorities. The Court found in particular that the manner in which the legal mechanisms had been implemented in the applicant’s case had been inadequate, constituting a violation of the obligation on the State to protect her rights. Facts of the case The applicant, Daliborka Špadijer, is a Montenegrin national who was born in 1978 and lives in Podgorica. In 2013 Ms Špadijer, then head-of-shift prison guard in a women’s prison, reported five colleagues for an

Crypto-assets' markets regulation: EDPS Opinion on the European Commission's Proposal

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On 24 June 2021, the European Data Protection Supervisor (EDPS) issued an  Opinion  on the European Commission’s Proposal to regulate the crypto-assets’ markets. The proposed Regulation includes a series of obligations and requirements concerning the trading of electronic money tokens, rules on the authorisation and supervision of those issuing and/or providing electronic money tokens, rules to protect individuals purchasing electronic money tokens. Overall, the Regulation seeks to prevent abuse in the crypto-assets’ markets. The EDPS made a number of recommendations concerning this proposal, in particular on the responsibilities of those issuing crypto-assets. As per the proposal, it is envisaged that issuers of crypto-assets may process the personal data of those purchasing crypto-assets by using various technologies and infrastructures, such as blockchain - a type of technology used in this case to record the purchasing and issuing of crypto-assets. Concerning the processing o

Crowdfunding in Cyprus

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By Chrysovalantis Papantoniou, Lawyer at S.Dionysiou & Partners LLC Crowdfunding is one of the most innovative financial schemes, which provides the opportunity of increase in capital by expanding the pool of investors beyond the traditional circle of owners.  Most often used by startup companies or growing businesses, whose owners aim at obtaining alternative funds through online platforms. The abovementioned services are regulated in Cyprus by the Cyprus Securities and Exchange Commission (“CySec”) under the Crowdfunding Directive D187-10 (“The Directive”). The main aim of the Directive is to heighten the guidance and protection already provided to investors by the Investment Services and Activities and Regulated Markets Law.It is important to point out that that the current legislation safeguards the interest of crowdfunding investors only through the issuance of transferrable securities and it excludes other forms of crowdfunding such as loans, rewards, or donations. As per

Artificial Intelligence in legal systems: The right to a human judge should be guaranteed at all stages of the proceedings (CCBE)

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The Council of Bars and Law Societies of Europe (CCBE) published a position paper on the proposal for a regulation laying down harmonised rules on Artificial Intelligence (Artificial Intelligence Act).  On 21 April 2021, the European Commission presented a proposal for a regulation laying down harmonised rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain Union legislative acts. The proposal is supplemented by 9 annexes.  The CCBE previously issued comments on the communication on the digitalisation of Justice in the EU, a response to the consultation on the European Commission’s White Paper on Artificial Intelligence as well as its own considerations on the legal aspects of Artificial Intelligence.  With the recent paper, the CCBE wishes to further develop its position in relation to several aspects of the proposal for an Artificial Intelligence Act (hereafter “the AIA” or “the proposal”).  In particular, the CCBE considers that:  • Despite the choi

Senior Legal Officer in the International Fund for Agricultural Development (IFAD)

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The International Fund for Agricultural Development (IFAD) seeks to recruit a Senior Legal Officer (Finance and Impact Investments) in Italy (full time- assignment duration 2 years ) The International Fund for Agricultural Development (IFAD) is an international financial institution and a specialized United Nations agency dedicated to eradicating rural poverty and hunger. It does so by investing in rural people. IFAD finances programmes and projects that increase agricultural productivity and raise rural incomes, and advocates at the local, national and international level for policies that contribute to rural transformation. The incumbent is accountable for authoritative provision of qualitative legal advice and services in general legal matters and, more specifically, in financial legal matters to the General Counsel / AVP, the departmental Team and other divisions and clients. S/he plays a lead role in supporting the legal framework of IFAD's operations, both technical and s

Data protection: Committee of Ministers updates recommendation on profiling

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The Committee of Ministers of the Council of Europe has adopted a  Recommendation  aiming to respond to the radical changes in profiling techniques in the last decade and to the consequent need for additional safeguards to protect personal data and private life of individuals. The text, which updates a previous recommendation on the same topic adopted in 2010, aims to align its provisions with the modernised data protection “Convention 108”, known as “ Convention 108+ ”. The recommendation provides that respect for fundamental rights and freedoms, notably human dignity, privacy, freedom of expression, non-discrimination, social justice, cultural diversity and democracy should be guaranteed in both the public and private sectors during all profiling operations. The recommendation refers to profiling as any form of automated processing of personal data, including use of machine learning systems, consisting in the use of data to evaluate certain personal aspects relating to an indiv

Moving between Member States without an identity card or passport - A fine amounting to 20% of the amount of the offender’s average net monthly income, is not proportionate to the seriousness of the offence

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In its Judgment in Case C-35/20 (6.10.2021) , the European Court of Justice ruled that a Member State may require its nationals to carry a valid identity card or passport when travelling to another Member State, irrespective of the means of transport used and the itinerary, subject to sanctions. While EU law does not preclude the imposition of a criminal penalty, it does preclude disproportionate penalties, such as a fine amounting to 20% of the offender's average net monthly income. A, a Finnish national, made a round trip between Finland and Estonia in August 2015 on a pleasure boat. During that trip, he crossed the international waters between Finland and Estonia. He was the holder of a valid Finnish passport, but did not have it with him during that trip. As a result, during a border check in Helsinki on his return, A was unable to produce his passport or any other travel document, although his identity could be established on the basis of his driving licence. The syyttäjä

(Associate) Officer Legal Services – Venture Debt : Vacancy in the European Investment Bank (EIB)

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The European Investment Bank (EIB), the European Union's bank, is seeking to recruit for its Legal Directorate (JU), Legal Department, Operations 1 (OPS 1), New Products Division (NP) at its headquarters in Luxembourg, a (Associate) Officer Legal Services – Venture Debt. This is a full time, temporary position at grade 4/5. The term of this contract will be until 31st December 2022. Panel interviews are anticipated to take place during November.  The New Products Division deals with EIB new products development and implementation, including corporate finance, infrastructure finance and structured finance for financial intermediaries (risk sharing, securitisation). The Division also handles for the Legal Directorate a broad range of transversal matters including the legal aspects of implementation of new policy or strategic initiatives, and questions of contractual standards/templates for EIB lending operations. Deadline for applications: 11th November 2021  More details and a

Managing persons accused or convicted of a sexual offence: Council of Europe issues new guidelines

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The Council of Europe issued a  Recommendation  to its 47 members states containing new guidelines regarding the assessment, management and reintegration of persons accused or convicted of a sexual offence. Adopted by the Committee of Ministers, the Recommendation aims to guide national authorities in their legislation, policies, and practice to prevent and reduce sexual reoffending. The Committee of Ministers recommends that risk assessments, treatments and intervention plans be individually tailored to persons accused or convicted of sexual offences. Prison services and probation agencies should manage and seek to reintegrate persons accused or convicted of a sexual offence in line with the risk they pose. Therefore, the focus should be on an individual’s distinct needs rather than the type of offence committed, especially concerning interventions or treatments. Whilst noting that cooperation between offenders and the professionals is central for effective reintegration, the

Sentencing of the applicant for having insulted the President of the Republic in Facebook posts : Turkey violated Article 10 ECHR (freedom of expression)

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In Chamber's judgment (19/10/2021) in the case of Vedat Şorli v. Turkey (application no. 42048/19) the European Court of Human Rights held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned the sentencing of the applicant to a term of imprisonment – with delivery of the judgement suspended for five years – for insulting the President of the Republic, on account of two posts which he shared on his Facebook account. The content comprised, among other things, a caricature and a photograph of the President of the Republic accompanied by satirical and critical comments concerning him.  The judgment convicting the applicant was based on Article 299 of the Criminal Code, which afforded a higher level of protection to the President of the Republic than to other persons. The Court found in particular as follows.  - There had been no justification in the present case for Mr Şorli’s placement in po