Guarantees of the Cultural Rights of Third-Country Nationals in European Union Primary Law

Kosińska, Anna Magdalena

doi:10.1007/978-3-030-30154-5_3

Anna Magdalena Kosińska³

162 Accesses

Abstract

The chapter presents an analysis of the EU primary law concerning cultural rights’ guarantees: the right to respect for private and family life, the right to marry and the right to found a family, the freedom of thought, conscience and religion and freedom of arts. The provisions of the Charter of Fundamental Rights of the European Union, in accordance with its Preamble, confirm the rights transpiring from the European Convention on Human Rights (ECHR). As it can be seen on the basis of the analysed case-law of the ECtHR, it is justified to adopt a thesis on the existence of the right to the protection against the culture of the country of origin. This right protects an individual against the elements of an oppressive social culture, whose manifestations might lead to a risk of inhuman treatment in the case of a return of a foreign national to the country of origin.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 69.99; Price excludes VAT (USA)

Softcover Book: USD 89.99; Price excludes VAT (USA)

Hardcover Book: USD 119.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
See: W. Jaeger, Paideia, trans. M. Plezia, H. Bednarek (Warszawa, 2001), 29. See: A.M. Kosińska, Kulturalne prawa człowieka (Lublin, 2014), 19.
2.
Art. 21 CFR can be found in its Title III, Equality, where there are also guarantees of respect for cultural diversity (Ar. 22 CFR), the principle of equality between women and men (Art. 23 CFR), the rights of the child (Art. 24 CFR), the rights of the elderly (Art. 25 CFR) and the rights of persons with disabilities (Art. 26 CFR). All the above guarantees, except for the prohibition of discrimination on grounds of nationality under Art. 21(2) CFR, are applicable not only to the citizens of the Union but also to all persons subject to EU law, therefore also foreign nationals. See: A. Wróbel, “Wprowadzenie,” in Karta Praw Podstawowych Unii Europejskiej. Komentarz, ed. A. Wróbel (Warszawa, 2013), 693.
3.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19.07.2000, 22, further also as Directive 2000/43.
4.
Art. 3(1) Directive 2000/43. Among the so-called equality directives, one should also mention the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, 16, further also as directive on equal treatment, Directive 2000/78. As is emphasized in the Preamble of the Directive: “9. Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.” Having unrestricted access to the job market also counteracts exclusion from cultural life.
5.
Fribourg Declaration on Cultural Rights of 7 May 2007, available on the website: www.culturalrights.net, www1.umn.edu. Accessed 12.09.2017.
6.
Art. 43(1)(G) International Convention on the protection of the rights of all migrant workers and members of their families adopted on 18 December 1990 by resolution 45/158 of the UN General Assembly.
7.
General Comment no. 21—Right of everyone to take part in cultural right, Committee on Economic, Social and Cultural Rights, 21 December 2009, Economic and Social Council. Document available on the website: http://www.refworld.org/docid/4ed35bae2.html Accessed 12.09.2017.
8.
See also: Convention against Discrimination in Education, adopted in Paris on 15 December 1960, Journal of Laws of 1964 no. 40, item 268.
9.
On this subject see: H. Izdebski, “Rola i miejsce Karty Praw Podstawowych,” in 5 lat Karty Praw Podstawowych UE, ed. A. Gubrynowicz (Warszawa, 2006), 19.
10.
See: Art. 53 CFR.
11.
In accordance with the explanations to the Charter: “This Article has been based on Article 6 of the Treaty on European Union and on Article 151(1) and (4) of the EC Treaty, now replaced by Article 167(1) and (4) of the Treaty on the Functioning of the European Union, concerning culture. Respect for cultural and linguistic diversity is now also laid down in Article 3(3) of the Treaty on European Union. The Article is also inspired by Declaration no. 11 to the Final Act of the Amsterdam Treaty on the status of churches and non-confessional organisations, now taken over in Article 17 of the Treaty on the Functioning of the European Union.” See: Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, 17.
12.
A. Wróbel, “Komentarz do art. 22 Karty Praw Podstawowych,” in Karta Praw Podstawowych Unii Europejskiej. Komentarz, ed. A. Wróbel (Warszawa, 2013), 770, 765.
13.
Ibidem, 767.
14.
Ibidem, 770.
15.
As E. Psychogiopoulou emphasizes, Art. 22 CFR imposes a negative responsibility of the Union, consisting of non-intervention into diversity, so as to avoid its violation, E. Psychogiopoulou, “The European Union and Cultural Rights,” in The Cultural Dimension of Human Rights, (Oxford, 2013), 169.
16.
See, for instance: Judgement of the Court of Justice of 14.05.1974 in the case J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities, C 4/73, ECLI:EU:C:1974:51, para. 13.
17.
UN Human Rights Committee (HRC), CCPR General Comment no. 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/Rev.1/Add.5, item 5.2. Comment available on the website: http://www.refworld.org/docid/453883fc0.html. Accessed 30.12.2017.
18.
See, for example, Judgement of the Court of Justice of 16.04.2013 in the case Anton Las v. PSA Antwerp NV, C 202/11, ECLI:EU:C:2013:239; Judgement of the Court of Justice of 12.05.2011 in the case Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės administracija and others, C 391/09, ECLI:EU:C:2011:291; Judgement of the Court of Justice of 12.09.2013 in the case Italian republic v. the European Commission and the European Personnel Selection Office (EPSO), T 164/08, ECLI:EU:T:2013:417.
19.
Judgement of the Court of Justice of 25.06.2015 in the case Loutfi Management Propriété Intellectuelle SARL v. AMJ Meatproducts NV i Halalsupply NV, C 147/14, ECLI:EU:C:2015:420, further also as judgement in the case C 147/14.
20.
Para. 25 of the judgement in the case C 147/14.
21.
In accordance with the explanations to the CFR: “This right is deduced primarily from the right to freedom of thought and expression. It is to be exercised having regard to Article 1 and may be subject to the limitations authorised by Article 10 of the ECHR.”
22.
J. Sobczak, “Komentarz do artykułu 13 Karty Praw Podstawowych,” in Karta Praw Podstawowych Unii Europejskiej. Komentarz, ed. A. Wróbel (Warszawa, 2013), 507.
23.
Ibidem, 511.
24.
Judgement of the Court of Human Rights of 16.12.2008 in the case Khurshid Mustafa and Tarzibachi v. Sweden, complaint no. 23883/06. See also: A. Młynarska-Sobaczewska, “Utopian Concept, Mixed Structure, Digital Extent and New Claims How to Take Seriously the Right to (Artistic) Culture?” International Human Rights Law Review, vol. 6, issue 2/2017, 181.
25.
In accordance with the explanations to the CFR: “The rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR.”
26.
J. Sobczak, “Komentarz do art. 7 Karty Praw Podstawowych,” in Karta Praw Podstawowych Unii Europejskiej. Komentarz, ed. A. Wróbel (Warszawa, 2013), 239. An interesting issue raised in the case-law of the ECtHR was the problem of a polygamic marriage contracted outside Europe (Decision of the European Commission of Human Rights of 17.12.1968 in the case Alam and Khan v. the United Kingdom, complaint no. 2991/66). The applicants in this case were father Mohamed Alma and his son from the second marriage Mohamed Khan. Mr Alam was a Pakistani working in the United Kingdom and wanted to enter the United Kingdom with his sons. Mr Alam had two wives—with the first one he had two sons and a daughter and with the second, a widow after his deceased brother, a daughter and two sons. Mr Alam married both wives in accordance with the religious law of Islam. Mr Alam’s son, the applicant Mohamed Khan, was refused entry into the territory of the United Kingdom. During the examination at the airport, Mr Alam did not reveal that he had a second wife and that Mr Khan was his son from that marriage. The applicants decided that their right under Art. 8 ECHR was violated due to the lack of the possibility of reuniting the son with his father residing abroad. The case was eventually settled amicably. See: Alam and Khan v. United Kingdom, Report on the submission 17.12.1968, Strasbourg; M.B. Dembour, When Humans Become Migrants. Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford, 2015), 99 et seq.
27.
Here in reference to the EU’s citizens; see: Judgement of the Court of Justice of 17.12.1992 in the case Heinz-Jörg Moritz v. the Commission of the European Communities, C 68/91, ECLI:EU:C:1992:531; Judgement of the Court of Justice of 2.10.2003 in the case Carlos Garcia Avello v. The Belgian State, C 148/02, ECLI:EU:C:2003:539; Judgement of the Court of Justice of 27.04.2006 in the case Standesamt Stadt Niebüll, C 96/04, ECLI:EU:C:2006:254; Judgement of the Court of Justice of 12.05.2011 in the case Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės administracija and others, C 391/09, ECLI:EU:C:2011:291.
28.
J. Sobczak, “Komentarz do art. 7 Karty Praw Podstawowych,” 248.
29.
Directive 2003/86.
30.
The case-law will be subject to a selective analysis in the further sections of the work.
31.
Judgement of the Court of Justice of 6.11.2012 in the case K v. Bundesasylamt, C 245/11, ECLI:EU:C:2012:685, further as judgement in the case C 245/11.
32.
Para. 16 of the judgement in the case C 245/11.
33.
Judgement of the European Court of Human Rights of 8.12.2015 in the case Z.H. and R.H. v. Switzerland, complaint no. 60119/12, further as the case of Z.H. and R.H. v. Switzerland.
34.
Judgement of the European Court of Human Rights of 5.12.2013 in the case Henry Kismoun v. France, complaint no. 32265/10.
35.
Judgement of the European Court of Human Rights of 13.10.2016 in the case B.A.C. v Greece, complaint no. 11981/15, further also as judgement in the case of B.A.C.
36.
Para. 43 of the judgement in the case B.A.C.
37.
The right to marry and the right to found the family are guaranteed in accordance with national acts guaranteeing the exercise of those rights.
38.
Decision of the European Commission of Human Rights of 7.07.1986 in the case Janis Khan v. the United Kingdom, complaint no. 11579/85, further as the case of Janis Khan v. the United Kingdom; I.C. Kamiński, “Komentarz do art. 9 Karty Praw Podstawowych,” in Karta Praw Podstawowych Unii Europejskiej. Komentarz, ed. A. Wróbel (Warszawa, 2013), 311.
39.
Decision of the European Commission of Human Rights of 18.12.1974 in the case X v. Federal Republic of Germany, complaint no. 6167/73.
40.
Decision of the European Commission of Human Rights of 16.10.1996 in the case Sanders v. France, complaint no. 31401/96; Decision of the European Commission of Human Rights of 3.12.1997 in the case Klip and Kruger v. the Netherlands, complaint no. 33257/96.
41.
The case of Janis Khan v. The United Kingdom.
42.
Decision of the European Commission of Human Rights on the inadmissibility of the complaint of 18.12.1974 in the case X v. Federal Republic of Germany, complaint no. 6167/73.
43.
In accordance with the explanations to the CFR: “The right guaranteed in para. 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’”
44.
I.C. Kamiński, “Komentarz do art. 10 Karty Praw Podstawowych,” in Karta Praw Podstawowych Unii Europejskiej. Komentarz, ed. A. Wróbel (Warszawa, 2013), 331.
45.
Ibidem, 339. This is what may happen when, for example, the public authorities exclude religious entities from the possibility of gaining broadcasting concessions or broadcasting advertisements of a religious character. See: Decision of the European Court of Human Rights on the inadmissibility of the complaint of 7.11.2000 in the case United Christian Broadcasters Ltd. v. the United Kingdom, complaint no. 44802/98; Judgement of the European Court of Human Rights of 10.07.2003 in the case Murphy v. Ireland, complaint no. 44179/98.
46.
Judgement of the Court of Justice of 5.09.2012 in the case Bundesrepublik Deutschland v. Y and Z, C 71/11 and C 99/11, ECLI:EU:C:2012:518, further as judgement in the case C 71/11. On this subject see also: A.M. Kosińska, “Wolność myśli, sumienia i religii migrantów w prawie Unii Europejskiej i w prawie krajowym—wybrane problem,” in Aktualne problemy wolności myśli, sumienia i religii, eds. P. Stanisz, A.M. Abramowicz, M. Czelny (Lublin, 2015), 145–147.
47.
Para. 31 of the judgement in the case C 71/11.
48.
In accordance with Art. 9 of the Directive 2004/83:
1. 1.
  Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
  1. (a)
    be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
  2. (b)
    be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
2. 2.
  Acts of persecution as qualified in para. 1, can, inter alia, take the form of:
  1. (a)
    acts of physical or mental violence …;
  2. (b)
    legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
  3. (c)
    prosecution or punishment, which is disproportionate or discriminatory.
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, 30.09.2004, 12.
49.
Para. 58 and 59 of the judgement in the case C 71/11.
50.
Para. 65 of the judgement in the case C 71/11.
51.
Para. 67 of the judgement in the case C 71/11.
52.
Para. 69 of the judgement in the case C 71/11.
53.
Para. 73 of the judgement in the case C 71/11.
54.
See also: A. Śledzińska-Simon, “Is there a place for the Islamic veil in the workplace? Managerial prerogatives and the duty of reasonable accommodation in the EU antidiscrimination governance,” Era FORUM, vol. 17, issue 2 (2016): 203–220.
55.
Judgement of the Court of Justice of 14.03.2017 in the case Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions, NV, C 157/15, ECLI:EU:C:2017:203, further as judgement in the case C 157/15.
56.
Directive 2000/78.
57.
Para. 15 of the judgement in the case C 157/15.
58.
Para. 34 of the judgement in the case C 157/15.
59.
See: para. 39 of the judgement in the case C 157/15.
60.
Para. 40 of the judgement in the case C 157/15.
61.
Judgement of the Court of Justice of 14.03.2017 in the case Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA, C 188/15, ECLI:EU:C:2017:204, further as judgement in the case C 188/15.
62.
Para. 17 of the judgement in the case C 188/15.
63.
Directive 2000/78.
64.
Para. 25 of the judgement in the case C 188/15.
65.
Para. 29 of the judgement in the case C 188/15.
66.
Para. 35 of the judgement in the case C 188/15.
67.
Para. 38 of the judgement in the case C 188/15.
68.
See: ruling in the case Eweida and others v. the United Kingdom, Judgement of the European Court of Human Rights of 15.01.2013, complaint no. 48420/10, 59842/10, 51671/10 and 36516/10.
69.
Case Leyla Sahin v. Turkey, complaint no. 44774/98. See: A. Grey, Comparative Religious Freedom: The Right to Wear Religious Dress in The other people. Interdisciplinary perspectives on migration, ed. M.W. Karraker (Palgrave Macmillan, 2013), 171; Overview of the European Court of Human Rights’ case-law on freedom of religion, report prepared by the Research Division of the Court, updated on 31 October 2013. Report available on the website: http://www.echr.coe.int/Documents/Research_report_religion_ENG.pdf. Accessed 12.09.2017.
70.
Decision of the European Court of Human Rights on the inadmissibility of the complaint of 15.10.2001 in the case Dahlab v. Switzerland, complaint no. 42393/98. See: M. Kopalova, “European Courts’ Case Law,” in Politics and Policies of Integration in Austria, Hungary, Czechia, Denmark and at EU level, eds. R. Hokovsky, J. Kopal, League of Human Rights & European Values Think-Tank (Brno–Praga, 2013), 382.
71.
Amongst others, to the case of Kokkinakis v. Greece, Judgement of the European Court of Human Rights of 25.05.1993, complaint no. 14307/88, further as judgement in the case of Kokkinakis v. Greece.
72.
See: sentence 11 of the judgement in the case Kokkinakis v. Greece.
73.
Judgement of the European Court of Human Rights of 26.11.2005 in the case Ebrahimian v. France, complaint no. 64846/11.
74.
The appropriateness of clothing in a public place and the connection between one’s clothing and religion was also the subject of the cases: Barik Edidi v. Spain (Decision of the European Court of Human Rights on the inadmissibility of the complaint of 19.05.2016, complaint no. 21780/13) and Lachiri v. Belgium (complaint no. 3413/09). Both cases concerned the appropriateness of clothing in the courtroom. In the first case, a complaint was filed by a lawyer, who was asked to move to the part of the courtroom reserved for members of the public, on the ground that she was wearing an inappropriate headgear—a hijab, whereas in accordance with the Court protocol a lawyer may appear in front of the Court only wearing the so-called biretta. The Court found the complaint under Art. 9 ECHR to be inadmissible on account of failure to exhaust domestic remedies. In the second case (complaint no. 3413/09) the applicant claimed that a violation under Art. 9 ECHR occurred on account of her exclusion from the courtroom as a result of her wearing a hijab.
75.
Judgement of the European Court of Human Rights of 4.12.2008 in the case Dogru v. France, complaint no. 27058/05.
76.
It is worth noting that the pupils proposed to the school authorities that they would wear hats instead of headscarves. Eventually, after being expelled from school, the girls continued their education by way of correspondence.
77.
Decision of the European Court of Human Rights on the inadmissibility of complaint of 30.06.2009 in the case Aktas v. France, complaint no. 43563/08.
78.
Judgement of the European Court of Human Rights of 10.01.2017 in the case Osmanoglu and Kocabas v. Switzerland, complaint no. 29086/12, further as the case of Osmanoglu and Kocabas v. Switzerland. What is interesting, in the judgement of 18 June 1993, the Swiss Federal Tribunal ruled that the refusal to participate in mixed-sex swimming classes insisted on by the Muslims lies within the scope of the protection under Art. 9 ECHR. However, in the judgement of 24.10.2008 the Federal Tribunal ruled that a refusal to dismiss Muslim children from mixed-sex swimming lessons does not violate the freedom of religion. As J. Krajczyński observes, referring to the text of the judgement, the change in the line of jurisprudence of the Swiss Tribunal was caused by the “important and urgent public interest relating to social integration,” J. Krajczyński, “Wolność sumienia i wyznania w najnowszej jurysprudencji Trybunału Federalnego Szwajcarii. Kwestie z zakresu szkolnictwa publicznego,” in Aktualne problemy wolności myśli, sumienia i wyznania, eds. P. Stanisz, A.M. Abramowicz, M. Czelny (Lublin, 2015), 162–164.
79.
Judgement of the European Court of Human Rights of 1.07.2014 in the case S.A.S. v. France, complaint no. 43835/11.
80.
See: I. Trispiotis, “Two Interpretations of “Living Together” in European Human Rights Law,” The Cambridge Law Journal, vol. 75, issue 3 (2016): 580–607.
81.
The discussion on the issue of the ban on face covering, which is postulated by representatives of European states, is increasingly becoming a pan-European debate. Suffice it to mention here the cases of Belkacemi and Oussar v. Belgium (complaint no. 37798/13) and Dakir v. Belgium (complaint no. 4619/12). The complaints concerned the full-face ban of a head covering (headscarf) introduced by the Belgian law, which according to the applicants (practising Muslims) violated their right to the freedom of religion.
82.
An interesting case, seemingly referring to the cultural safety of Europe was the case of Ouardiri v. Switzerland (Decision of the European Court of Court of Human Rights on the inadmissibility of the complaint of 8.07.2011, complaint no. 65840/09), in which the applicants claimed that the constitutional ban on the building of minarets in the territory of Switzerland is in breach of their religious freedom. The Court found their complaint to be inadmissible (decision of 8.07.2011) arguing that the applicants were not able to demonstrate they factually had the status of victims and experienced a violation. In the opinion of the Court, their complaint had an actio popularis character. What is more, the Court decided that the Swiss Federal Constitutional Court in passing a ruling on the compatibility of the constitutional provisions with the Convention (judgement of 21.01.2010) ensured the possibility of Court control over the compatibility of future refusals to build minarets with the ECHR.
83.
Judgement of the European Court of Human Rights of 11.07.2017 in the case Dakir v. Belgium, complaint no. 4619/12.
84.
Judgement of the European Court of Human Rights of 11.07.2017 in the case Belcacemi and Oussar v. Belgium, complaint no. 37798/13.
85.
See also: Cultural Rights in the case-law of European Court of Human Rights, Council of Europe. European Court of Human Rights (2011): 21.
86.
Decision of the European Court of Human Rights on the inadmissibility of complaint of 11.01.2005 in the case Suku Phull v. France, complaint no. 35753/03. On the subject of the Sikh denomination, see: EASO Country of Origin Information Report, Pakistan Country Overview, August 2015, 94.
87.
The functioning of the Sikhs in the cultural sphere was also the subject of the judgement in the case of Mann Singh v. France, in which the applicant was trying to get a duplicate of a stolen driving licence. The applicant was refused the issuance of the document on two occasions since he supplied to the administrative bodies his photographs in a turban. In accordance with the guidelines, such photographs should show a person without a head covering and en face. The ECtHR ruled that the regulation concerning the document photograph did not violate the freedom of religion under Art. 9 ECHR. The aim of the regulation was to protect public safety. As the Court emphasized, Art. 9 does not protect each action motivated or inspired by religion or faith. What is more, Art. 9 does not always guarantee the possibility of behaviour according to one’s faith. Decision of the European Court of Human Rights on the inadmissibility of complaint of 13.11.2008 in the case Mann Singh v. France, complaint no. 24479/07.
88.
Decision of the European Commission of Human Rights of 12.07.1978 in the case X v. the United Kingdom, complaint no. 7992/77.
89.
Decision of the European Court of Human Rights on the inadmissibility of the complaint of 4.03.2008 in the case El Morsli v. France, complaint no. 15585/06, further also as the case of El Morsli v. France.
90.
Judgement of the European Court of Human Rights of 8.11.2007 in the case Perry v. Latvia, complaint no. 30273/03.
91.
As for the terminology, it seems that a fuller illustration of the object of protection might be rendered by the words: “protection against the culture of the country of origin”—for the sake of clarity, however, it should be added here that it is more common that an oppressive character can be attributed to specific elements of the given culture, and not culture understood en masse, with all its manifestations.
92.
Judgement of the European Court of Human Rights of 20.07.2010 in the case N v. Sweden, complaint no. 23505/09.
93.
In the justification the Court referred to mainly to the Afghan law of April 2009 in accordance with which women are not allowed to leave home without their husband’s consent. Moreover, in accordance with reports examined by the ECtHR, over 80% of women experience domestic violence in Afghanistan.
94.
Judgement of the European Court of Human Rights of 8.04.2015 in the case W.H. v. Sweden, complaint no. 49341/10.
95.
Judgement of the European Court of Human Rights of 10.09.2015 in the case R.H. v. Sweden, complaint no. 4601/14.
96.
Decision of the European Court of Human Rights on the removal of the complaint of 16.12.2008 in the case Hossein Kheel v. the Netherlands, complaint no. 34583/08.
97.
Decision of the European Court of Human Rights on the inadmissibility of the complaint of 29.11.2011 in the case V.F. v France, complaint no. 7196/10. The complaint in the case of F.A. v. the United Kingdom concerned a similar situation, in which the applicant claimed that her return to Ghana would result in her getting into the hands of human traffickers who had forced her to prostitution. The Court decided that the complaint was inadmissible as the applicant did not exhaust all domestic remedies. See: Decision of the European Court of Human Rights on the inadmissibility of the complaint of 10.09.2013 in the case F.A. v. the United Kingdom, complaint no. 20658/11. A widely discussed problem of discrimination in the case-law also concerned the problem of discrimination on the grounds of sexual orientation. See: Judgement of the Court of Justice of 7.11.2013 in the case Minister voor Immigratie en Asiel v. X and Y, and Z v. Minister voor Immigratie en Asiel, C 199/12, ECLI:EU:C:2013:720; Judgement of the European Court of Human Rights of 8.04.2015 in the case M.E. v. Sweden, complaint no. 71398/12 (the applicant was a national of Libya who was eventually granted a residence permit in Sweden); Decision of the European Court of Human Rights on the removal of the complaint of 10.07.2012 in the case A.S.B. v. the Netherlands, complaint no. 4854/12 (the applicant was a Jamaica national who was eventually granted asylum in the Netherlands).
98.
Judgement of the European Court of Human Rights of 28.06.2012 in the case A.A. and others v. Sweden, complaint no. 14499/09. The Court ruled that a threat of violating Art. 2 and 3 ECHR was not proven in that case.
99.
Judgement of the European Court of Human Rights of 16.06.2016 in the case R.D. v. France, complaint no. 34648/14. Similarly, the circumstance of honorary crime was raised by the applicant in the case of Jabari v. Turkey (Judgement of 11.07.2000, complaint no. 40035/98). The applicant was an Iran national, who feared that in case of her return to her country of origin she would be stoned on account of having committed adultery, which would be in accordance with the law of Islam. Thus, the Court ruled that the expulsion of the applicant to Iran would be in breach of Art. 3 ECHR.
100.
Decision of the European Court of Human Rights on the inadmissibility of the complaint of 8.03.2007 in the case Collins and Akaziebie v. Sweden, complaint no. 23944/05.
101.
Decision of the European Court of Human Rights on the inadmissibility of the complaint of 17.05.2011 in the case Izevbekhai v. Ireland, complaint no. 43408/08. The applicants (mother and two daughters) claimed that as a result of the circumcision the eldest daughter of the family had died. The Court did not find a risk of the violation under Art. 3 ECHR.
102.
Decision of the European Court of Human Rights on the inadmissibility of the complaint of 20.09.2011 in the case Omeredo v. Austria, complaint no. 8969/10.
103.
Judgement of the European Court of Human Rights of 19.01.2016 in the case Sow v. Belgium, complaint no. 27081/13.
104.
Decision of the European Court of Human Rights on the removal of the complaint of 14.06.2014 in the case Bangura v. Belgium, complaint no. 52872/10.
105.
Decision of the European Court of Human Rights on the removal of the complaint of 1.07.2003 in the case Miriam Abraham Lunguli v. Sweden, complaint no. 33692/02.
106.
The problem of the risk of persecution on the grounds of religion was also the subject of the above case of W.H. v. Sweden. The applicant was an Iranian national belonging to an ethnic and religious minority.
107.
Judgement of the European Court of Human Rights of 20.01.2009 in the case F.H. v. Sweden, complaint no. 32621/06.
108.
Judgement of the European Court of Human Rights of 23.03.2016 in the case F.G. v. Sweden, complaint no. 43611/11.
109.
P. van Dijk enumerates the following criteria which allow to assess the connection of a foreign national with the host country: the fact of being born in the host country, the length of residence in the country, having received primary education in the host country, the knowledge of the language of the host country and the language of the country of origin, having (formerly) the citizenship of the host country or applying for such citizenship, remaining married to a national of the host country, having relatives in the host country, having close relatives living in the country of origin. See: P. van Dijk, “Protection of “Integrated” Aliens against Expulsion under the European Convention on Human Rights,” in Security of Residence and Expulsion. Protection of Aliens in Europe, eds. E. Guild, P. Minderhoud (Nijhoff, 2001), 31–32.
110.
Judgement of the European Court of Human Rights of 26.03.1992 in the case Beldjoudi v. France, complaint no. 12083/86.
111.
A similar case to the above was that of Boultif v. Switzerland, where the applicant was a national of Algeria, who was issued a return decision. The Court ruled that in case of returning the applicant and separating the spouses an infringement of Art. 8 ECHR would occur. See: Judgement of the European Court of Human Rights of 2.08.2001 in the case Boultif v. Switzerland, complaint no. 54273/00.
112.
Judgement of the European Court of Human Rights of 18.10.2006 in the case Uner v. the Netherlands, complaint no. 46410/99. See: FRA Report: Fundamental Rights of Migrants in Irregular Situation, FRA 2011, 30.
113.
Judgement of the European Court of Human Rights of 28.06.2007 in the case Kaya v. Federal Republic of Germany, complaint no. 31753/02.
114.
J. Wojnowska-Radzińska, “Ochrona wydalanych cudzoziemców na podstawie art. 3 Konwencji o ochronie praw człowieka i podstawowych wolności,” Studia Europejskie, issue 1 (2013): 10. See also: A. Szklanna, Ochrona prawna cudzoziemca w świetle orzecznictwa Europejskiego Trybunału Praw Człowieka (Warszawa, 2010), 222 et seq.
115.
J. Wojnowska-Radzińska, “Ochrona wydalanych cudzoziemców na podstawie art. 3,” 112.
116.
Judgement of the European Court of Human Rights of 21.12.2001 in the case Sen v. the Netherlands, complaint no. 31465/02.
117.
Judgement of the European Court of Human Rights of 14.06.2011 in the case Osman v. Denmark, complaint no. 38058/09.
118.
Decision of the European Court of Human Rights on the inadmissibility of the complaint of 8.03.2016 in the case I.A.A. and others v. the United Kingdom, complaint no. 25960/13.
119.
Judgement of the European Court of Human Rights of 30.07.2013 in the case Berisha v. Switzerland, complaint no. 948/12. In a similar way, the Court did not recognize a breach of Art. 8 ECHR in an interesting case of Chbihi Loudoudi and others v. Belgium. The applicants were nationals of Morocco, who wanted to adopt their niece on the grounds of an agreement kafala with the girl’s parents, which was in accordance with the law of Islam. Both, the national authorities as well as the Court took a stance that such an adoption would not be in the best interest of the child and that the status of the child would be different in Belgium (where the child would have adoptive parents) and different in Morocco. See: Judgement of the European Court of Human Rights of 16.12.2014 in the case Chbihi Loudoudi and others v. Belgium, complaint no. 52265/10.
120.
The limitation clause is understood as a structure contained in a legal provision, allowing for the limitation of the rights and freedoms of a person. See: B. Liżewski, Klauzule generalne i ich funkcje w Europejskiej Konwencji Praw Człowieka, “Annales Universitatis Mariae Curie-Skłodowska, Lublin—Polonia” 2016, vol. LXIII, issue 2, 196.
121.
Ibidem, 197.
122.
As, for example, in the case of El Morsli v. France, Senger v. Federal Republic of Germany.
123.
As, for example, in the case of Z.H. and R.H. v. Switzerland and in the case of Janis Khan v. the United Kingdom.
124.
As, for example, in the case of Osmanoglu and Kocabas v. Switzerland.
125.
I. Trispiotis, Two Interpretations of “Living Together,” 581.
126.
Ibidem, 582.
127.
Ibidem, 606.
128.
On the subject of the principle of living together, see also: Freedom of religion and living together in a democratic society, Parliamentary Assembly Council of Europe, 30 September 2015, text of the resolution available on the website: http://assembly.coe.int/nw/xml/XRef/Xref%2D%2DXML2HTML-en.asp?fileid=22199&lang=en. Accessed 30.12.2017.

Author information

Authors and Affiliations

John Paul II Catholic University of Lublin, Lublin, Poland
Anna Magdalena Kosińska

Authors

Anna Magdalena Kosińska
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Anna Magdalena Kosińska .

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Kosińska, A.M. (2019). Guarantees of the Cultural Rights of Third-Country Nationals in European Union Primary Law. In: Cultural Rights of Third-Country Nationals in EU Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-30154-5_3

Download citation

DOI: https://doi.org/10.1007/978-3-030-30154-5_3
Published: 10 December 2019
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-30153-8
Online ISBN: 978-3-030-30154-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics