Friday, 19 December 2008

Last Post of 2008

With almost 20,000 pageviews from nearly a 100 countries since its start at the end of May, this weblog has gathered a large group of readers. It is to you all that I would like to extend my thanks, for it is your reactions that kept me going, trying to provide you all kinds of ECHR-related news.

This is my last post of this calendar year, but I will be back in full swing on January 5. For those of you who wish to read a judgment under the Christmas tree, I can recommend Khurshid Mustafa and Tarzibachi v. Sweden: on a family originally from Iraq, evicted from their apartment in Sweden for refusing to remove a satellite dish which enabled them to watch television programmes from their country of origin. One may specifically consider with a smile the Court's ironic obiter dictum that it concerned "a tenement house with no particular aesthetic aspirations"!

Best wishes for the end of the year, dear readers, and see you in 2009!

Thursday, 18 December 2008

Article on Impartiality of ECtHR Judges

Professor Eric Voeten of Georgetown University has just published the article 'The Impartiality of International Judges: Evidence from the European Court of Human Rights' in the most recent issue (vol. 102, issue 4, 2008) of the American Political Science Review. This is the abstract:

Can international judges be relied upon to resolve disputes impartially? If not, what are the sources of their biases? Answers to these questions are critically important for the functioning of an emerging international judiciary, yet we know remarkably little about international judicial behavior. An analysis of a new dataset of dissents in the European Court of Human Rights (ECtHR) yields a mixed set of answers. On the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings. There is some evidence that career insecurities make judges more likely to favor their national government when it is a party to a dispute. Most strongly, the evidence suggests that international judges are policy seekers. Judges vary in their inclination to defer to member states in the implementation of human rights. Moreover, judges from former socialist countries are more likely to find violations against their own government and against other former socialist governments, suggesting that they are motivated by rectifying a particular set of injustices. I conclude that the overall picture is mostly positive for the possibility of impartial review of government behavior by judges on an international court. Like judges on domestic review courts, ECtHR judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores.

Wednesday, 17 December 2008

Television Commercials for Political Parties

The regulation of advertising for political parties on television is an issue hotly debated in many countries. In Norway there is a complete ban on such advertising. Thus when a local television station (TV Vest) broadcasted adverts for the Pensioners Party, it was fined. Both TV Vest and the Pensioners Party lodged a complaint in Strasbourg and the Court found in their favour: Article 10 ECHR (the freedom of expression) had been violated, according to the Court in its judgment last week in TV Vest AS & Rogaland Pensjonistparti.

Interestingly, Norway defended the ban on the grounds that allowing advertising would allow powerful financial groups to market their opinions. The Court noted, however, that the ban in this case had the opposite effect by precluding any advertising for a party which barely got mentioned in TV programmes or the news. Therefore, advertising was the only way to convey its message to voters on TV. The Court also mentioned that the adverstiement at issue was descriptive and a mere call to vote. The Court also considered that no particular sensitivities were at play (such as in the case of religious advertising in the Irish context in the case of Murphy of 2003) and that it could not be supported that there was no alternative to a blanket ban. Societal context thus appears particularly important. The Court found that neither the ban nor the fine had been "necessary in a democratic society". The judgment contains a concurring opinion by Judge Jebens.

The press release can be found here.

Tuesday, 16 December 2008

Systemic Problems of Romanian Restitution

Last week, the Court gave a pilot-like judgment in the case of Viasu v. Romania. The applicant in the case tried in vain to have a compensation order under current Romanian restitution legislation enforced. Viasu's plot of land had been nationalised in the Communist era, and restitution in itself was impossible because the land in question was being used as a mine.

The Court noted that many others, including many which had an application pending in Strasbourg, found themselves in the same situation. The Court found a violation of Article 1 of Protocol 1 ECHR (peaceful enjoyment of possessions), since the national compensation decisions for Mr. Viasu had not been enforced for years. The problem was caused by the very complicated restitution system, which had undergone many legislative changes leading to legal uncertainty. The Court refers to this as overabundant and largely ineffective legislative activity ("activité normative surabondante et ... largement inefficace", para. 72). In this sense the problem was systemic. This of course implies that the state involved has to take action which goes beyond the circumstances of the case at hand.

The most interesting part in this judgment is probably the Court's reasoning under Article 46 (states have to abide by the Court's judgments). The Court makes reference to the thousands of comparable cases in Romania and to the dozens of its own judgments since the first case on the issue, Brumarescu. In addition many comparable cases are, as indicated, still pending. This not only a factor leading to increased state responsibility, but also endangers the effectiveness of the ECHR's machinery (in the light of the high case load). The Court then continues on a path it has increasingly taken in the last few years, that of indicating more precisley what a state is expected to do. As in the past, it strongly emphasizes that these are only indications and not orders, since it is for the state, under the supervision of the Committee of Ministers, to choose the means of implementation. This is the relevant and revealing part of the judgment (para. 83, in French):

Pour aider l'État défendeur à remplir ses obligations au titre de l'article 46, la Cour a cherché à indiquer, à titre purement indicatif, le type de mesures que l'État roumain pourrait prendre pour mettre un terme à la situation structurelle constatée en l'espèce. Elle considère que l'État défendeur doit, avant tout, soit supprimer tout obstacle s'opposant à l'exercice effectif du droit des nombreuses personnes touchées par la situation jugée par elle contraire à la Convention, comme c'est le cas du requérant, ou à défaut, offrir un redressement approprié. L'État défendeur doit donc garantir par des mesures légales et administratives appropriées la réalisation effective et rapide du droit à restitution, qu'il s'agisse d'une restitution en nature ou de l'octroi d'une indemnité, conformément aux principes de la prééminence du droit et de la légalité de la protection des droits patrimoniaux énoncés à l'article 1 du Protocole no 1, en tenant compte des principes énoncés par la jurisprudence de la Cour en matière d'indemnisation (arrêt Broniowski précité, §§ 147-151, 176 et 186). Ces objectifs pourraient être atteints, par exemple, par l'amendement du mécanisme de restitution actuel, dont la Cour a relevé certaines faiblesses, et la mise en place d'urgence de procédures simplifiées et efficaces, fondées sur des mesures législatives et règlementaires cohérentes, qui puissent ménager un juste équilibre entre les différents intérêts en jeu.
For the applicant there was a directly positive outcome: Romania is to pay him 115,000 euros within three months. This in itself may form a strong inducement for the authorities to provide clarity in the restitution law system.

The judgment is available only in French, but a press release in English can be found here.

Wednesday, 10 December 2008

Happy Birthday Universal Declaration!

Today it is exactly 60 years ago that the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations. A reason to celebrate and to emphasize the enduring value and necessity of this document, especially in the face of the world's current and widespread violations of those rights. Today, the European Court's president gave his views in his own declaration:

In 2008 Human Rights Day coincides with the 60th anniversary of the Universal Declaration of Human Rights. Without the Universal Declaration, one of the first great achievements of the United Nations, nothing would have been possible. It called into being most of the later international human rights protection instruments, and the European Convention on Human Rights, signed as early as 1950, directly follows the line it traced.

The three regional human rights courts (African, European and Inter-American) have just held a major colloquy in the Human Rights Building, on 8 and 9 December, which provided an opportunity to compare case-law and practice.

It will soon be fifty years since the Strasbourg Court began to apply and interpret the Convention, and it is proud to have delivered more than 10,000 judgments, which have binding force and translate into concrete and enforceable terms the main principles solemnly set forth in the Declaration.

Our Court has drawn the broad lines of the right to a fair trial, the right to respect for private life, freedom of the press, the right to life and physical integrity and so on. More recently, it has intervened in new fields, such as education, the environment and bioethics. It has affirmed its case-law on protection of the rights of aliens, including in the (certainly legitimate and indispensable) context of combating terrorism. It has also tackled new social problems, such as those of a sexual nature.

The Court has successfully responded to the need to take into account the evolution of our societies and the appearance of new problems and new technologies. The diversity of the cases it has to deal with and the ever growing number of applications show that, more and more, people are turning towards the Court and placing their trust in it, with the result that its workload has been significantly increased. The celebrations – today of the 60th anniversary of the Universal Declaration, next year of the 50th anniversary of our Court – must not be focused on the past alone: we also have to think about the long-term future of the European human-rights protection system, to which we must give a new lease of life.

In the same way, Human Rights Day should celebrate what has been achieved in the past and turn towards the future. For sixty years the United Nations and the regional organisations like the Council of Europe have led humanity forward on the path of justice and freedom. But there is still a long road to travel. Let us unite our forces for the journey!

Tuesday, 9 December 2008

DNA Retention Struck Down

Last week, om 4 December, the Grand Chamber delivered its judgment S. and Marper v. United Kingdom, a highly anticipated case on the retention of fingerprints and DNA by the British authorities. The complaints centered on the situation of persons who had been suspected of crimes but who had subsequently either been acquitted or whose proceedings had been discontinued. Current British law allowed for the unlimited DNA, cellular samples and fingerprint retention of that category of persons, even when such persons requested the authorities to destroy such samples.

The Grand Chamber unanimously found that this situation violated the right to respect for privacy under Article 8 ECHR. The judgment contains noteworthy passages on the retention of DNA as an interference with private life. In addition, the Court noted (in para. 110) that "England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence." This affects the margin of appreciation (para. 112):

In the Court's view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.
The Court concluded that the existing blanket and unlimited retention of this kind of personal information overstepped any acceptable margin of appreciation.

The case thus indicates the outer limits of the acceptable storage of personal information. In the following years - considering the high relevance of the issue in most state parties to the ECHR - the issue will certainly resurface. What can already be concluded from this case, is that the state should carefully balance the interests of society and the individual interest of privacy. Blanket and general rules applying to everyone irrespective of guilt or nature of the suspected crime just will not do.

The press release can be found here. A video of the delivery of the judgment by President Costa can be watched here.

Friday, 5 December 2008

Round-up of New Academic ECHR Articles

Just before the weekend, a short round-up of recent ECHR-related articles in academic journals:

Specifically on ECHR and health there is an article in the European Journal of Health Law (2008, vol. 15, no. 4):
- Testing the margin of appreciation: therapeutic abortion, reproductive 'rights' and the intriguing case of Tysiac v. Poland, by N. Priaulx (p. 361-379).

Finally the International Journal on Minority and Group Rights (2008, vol. 15, no. 1) contains this article:
- Minority mobilisation in Greece and litigation in Strasbourg, by K. Tsitselikis (p. 27-48).

Other recent articles on human rights law can be found on the new current contents selection of the Netherlands Institute of Human Rights SIM. A great resource!

Wednesday, 3 December 2008

Privacy, Internet, and Children

The protection of privacy is a major problem on the internet. But the situation gets even more complicated when the protection of the privacy of one person negatively affects the privacy of another person. That is exactly what happened in the case of K.U. v. Finland, in which the Court delivered its judgment yesterday. The case was lodged by a Finnish boy. He complained that in 1999, when he was 12 years old, someone posted a sexual advertisement about him on the internet without his knowledge, with a link to his picture and email address. The ad indicated that he was looking for "an intimate relationship with a boy of his age or older to show him the way". Subsequently, he received an email from a man who wanted to meet him to "see what he wanted". When the boy's father complained to the police and asked them to bring charges, it appeared that the internet provider could not be forced under Finnish law in the context of slander (under which the Finnish courts revierwed the case) to divulge the identity of the person that had posted the ad.

The European Court considered the case under Article 8 ECHR (right to respect for privacy) considering the "the potential threat to the applicant's physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age." (para. 41). It held that the state had failed in its positive obligation to effectively protect the applicant by failing to take steps to identify and prosecute the perpretrator. Let me cite two relevant passages from the judgment:

The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes. Also the widespread problem of child sexual abuse had become well-known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet. (para. 48)

Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. (para. 49)
In conclusion, the Court unanimously found a violation of Article 8. Thus the judgment offers important pointers on the extremes within which the state's balancing exercise in these matters should take place. A welcome development!

To Finland's (albeit late) credit, new legislation has come into force which does permit for disclosure of identity in comparable cases.

The press release in this case can be found here.

Monday, 1 December 2008

Article on Proportionality in ECHR Judgments

Stavros Tsakyrakis of the University of Athens has just posted an online article on the issue of balancing in ECHR judgments, entitled 'Proportionality: an Assault on Human Rights', which delivers a biting critique of the current proportionality approach. This is the abstract:

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamentals rights. The European Court of Human Rights is routinely balancing human rights against each other and against conflicting public interests and has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights. The paper examines the debate on balancing in the context of American constitutional law and the Convention, and discusses theories which claim that some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes and suggests that courts should instead focus on the real moral issues underlying such disputes.

Friday, 28 November 2008

Access to Lawyer for Juvenile Delinquents

Yesterday, the Grand Chamber issued its judgment in the case of Salduz, about a 17 year-old boy who was questioned in a police station without having access to a lawyer and was subsequently convicted, mainly on his confession made at the police station. Contrary to the earlier judgment of a Chamber of the Court (2007), the Grand Chamber unanimously found a violation of Article 6(3-e), the right to legal assistance. The concurring opinions are very much worth reading. One of them argues for a reopening of the trial on the national level as the best way of achieving restitutio in integrum - and thus continues the debate on how precisely the Court should indicate what a state should do to remedy a violation of the Convention.

Thursday, 27 November 2008

Sikh Turban Case Inadmissible

The wearing of religious clothing is a topical issue in many European countries. This month, the Court declared inadmissible the complaint of a Sikh, in Mann Singh v. France. The applicant had tried to obtain a duplicate driving licence after the original had been stolen. His request was refused, because he did not want to pose for the identity photographs without his turban (Sikh men are required to wear a turban at all times), although the applicable rules required that a person should be "bareheaded and facing forward" on an identity photograph. The reasoning of the applicant that this had not been necessary in earlier years, was not accepted.

The European Court of Human Rights found that the French requirement interfered with Mann Singh's freedom of religion, but that it was provided by law and served the legitimate aim of ensuring public safety. In this context it was necessary for the authorities to be able to identify persons under road traffic regulations to check whether someone was authorized to drive. Referring to earlier case law, it held that the details of such national arrangements fell within a state's margin of appreciation. It also noted, that the requirement was a sporadic one. The earlier cases to which the Court refers are Phull v. France (Sikh in airport security check), El Morsli v. France (muslim woman in consulate of France in Morocco, in context of identity check), and Karaduman v. Turkey (identification in order to receive university diploma).

One can conclude from all of these cases, that - unless manifestly unreasonable or disproportionate - ECHR state parties can go against people's own religious rules for the purposes of necessary identification which serves a legitimate aim.

Although the applicant also invoked the right to privacy and the prohibition of discrimination, the Court did not find any appearance of a violation of those provisions. The decision itself is available only in French, but the press release in English can be found here.

Wednesday, 26 November 2008

Redress for Privacy Violations by the Media

Just a short note today on two related cases of privacy violations by the media. Yesterday, the Court issued its judgments in Armonas v. Lithuania and Biriuk v. Lithuania. The leading Lithuanian newspaper, basing itself on hospital staff, published an article on its front page in 2001 stating that Mr Armonas and Ms Biriuk were HIV positive, describing the two as having illegitimate children and labelling Ms Biriuk as "notoriously promiscuous". The two applicants lived in a small village community. When both of them sued the newspaper on the national level, alleging violations of privacy, they won their cases and were awarded damages. They claimed in Strasbourg, however, that the height of the damages was derisory, and that this in practice protected the media against lawsuits relating to breaches of privacy. The Court found, in both cases, by six votes to one, that Article 8 ECHR (right to respect for privacy) had indeed been violated. The judgments devote a few notable remarks to the dangers of medical staff disclosing patient's personal medical information to third parties. It calls the matter an "outrageous abuse of press freedom". Interestingly, the Court notes as part of its argumentation that the legal ceiling on compensation for damages in Lithuania was changed soon after the events in question to a higher level.

In both cases judges Popovic and Tsotsoria disagreed with the majority on the amounts awarded for non-pecuniary damage(6,500 euros to each applicant), holding those to be excessive in the light of the balancing between the right to privacy and the right to freedom of expression. The Italian judge Zagrebelsky disagreed on the substantive point and argued in his dissenting opinion that Article 8 had not been violated. He basically argues, with good reasons, that the matter of how high the ceiling for damages is, generally falls - except for extreme cases - within a state's margin of appreciation. The Lithuanian judge did, by the way, vote with the majority on all points.

Two cases worth reading in many respects!

Monday, 24 November 2008

Dual Nationality and Election Rights

Usually results of past elections are at stake in judgments concerning the right to vote, but last week the European Court issued its judgment in a forward looking case: Tanase and Chirtoaca v. Moldova. The two applicants in the case complained that a law enacted in April of this year, which precluded persons with a dual or multiple nationality from becoming members of Parliament, violated their election rights under Article 3 of Protocol 1 ECHR. This Article obliges states to hold regular and free elections. It has been interpreted by the Court to include both active and passive electoral rights: the right to vote and the light to stand as a candidate for election.

The applicants were two politicians. Chirtoaca is the mayor of Chisinau, Moldova's capital, and Tanase is member of that city's municipal council. Both are leading figures of (different) liberal parties and wanted to stand as candidates in the upcoming parliamentary elections. Chirtoaca and Tanase have a double Moldovan and Romanian nationality, as do hundreds of thousands of their fellow Moldovans. In addition, 120,000 Moldovans (one may assume mostly in the region of Transdnistria) also have Russian nationality. In a country with approximately 4 million inhabitants these are high numbers. Thus, the introduction of a new law on elections in Spring 2008 affected a very considerable group.

The case was dealt with in a particularly quick manner. The application was lodged less than a year ago, on 27 December 2007. In June of this year, the Court decided to give the case priority in view of the Moldovan elections in Spring 2009. See Rule 41 of the Rules of Court.

Mr Chirtoaca's application was declared non-admissible by the Court. Since he had indicated that he would not give up his position as mayor but simply participated to gain votes for his party's list (and since Moldovan law did not allow for double mandates), the European Court held that he was not himself affected by the law at stake. By contrast, Mr Tanase was. He faced, in the wording of the Court, "the difficult choice between sitting as an MP and renouncing his dual nationality". Thus the Court concluded that the new law directly affected him.

It must be noted that in the course of this year, a range of European institutions openly criticised the law: the European Commission against Racism and Intolerance (ECRI), the EU-Moldova Cooperation Council, the Council of Europe's Parliamentary Assembly and the Venice Commission. Amongst others, it was noted that the law directly contravened the European Convention on Nationality, to which Moldova is a party, which explicitly provides that citizens with multiple nationalities shall have the same rights as other nationals in the state concerned.

The Venice Commission, in its report on the law, noted that the nationality issue could be a violation of the ECHR. Indeed, the Court's judgment in this case has now confirmed that. Generally, the Court grants states a large margin of appreciation under Article 3 of Protocol 1 and it assesses cases "in the light of the political evolution of the country concerned." It is interesting that the Court under the legality test mentioned that the law was apparently inconsistent with the Convention on Nationality, which in the Moldovan legal order takes precedence over national legislation. The Court accepted the Government's claim that the law was meant to ensure the loyalty of MPs to Moldova and that this could be considered a "legitimate aim". However, the Court found the particular provision in the law to be disproportionate. The reasoning of the Court is telling: it noted that Moldova is the only country allowing multiple nationalities, but banning such people to stand for national elections. In addition, the Court considers that there are other ways of ensuring loyalty (such as an oath). Let me quote one passage (para. 109): "In this respect the Court wishes to stress that in a democracy, loyalty to a State does not necessarily mean loyalty to the actual government of that State or to a certain political party." Another point by which the Court was struck was that in 2002-2003 Parliament had introduced legislation to allow for dual nationality, as a consequence of which many people had applied for it. The new law deprived these people from standing for national elections ("failing renunciation of an acquired additional nationality"). Also, the Court found that the introduction of the new law less than a year before the new elections went against Council of Europe recommendations on the stability of electoral law. The Court also referred to the Venice Commission's report on the issue and noted that Moldova did "not react in any way to the unequivocal signals of concern from the Council of Europe" (para. 114). Taking all these considerations together, the Court concluded that the law's provision was disproportionate.

One can hardly imagine stronger support for other European organisations working on the issue than this judgment. Nor can one imagine a clearer condemnation of Moldova's actions by a respected international court. The final arbiter has now issued its dictum. It can only be hoped that Moldova will now finally take action to bring its electoral law in line with the European standards it has committed itself to.

The press release in this case can be found here.

Friday, 21 November 2008

Euthanasia Follow-Up in Strasbourg?

The question of interim measures is en vogue this week. A highly publicised case of euthanasia in Italy has led to an application in Strasbourg by concerned Italians. They also asked for interim measures, but those were refused by the Court on Wednesday. This is the Court's press release on the issue:

On 18 November 2008 the European Court of Human Rights received an application (no. 55185/08) lodged by the guardian of Mrs Ada Rossi, a person in a persistent vegetative state receiving artificial nutrition and hydration, and by VI.VE Onlus, Federazione Nazionale Associazioni Trauma Cranico, ARCO 92, Gli Amici di Luca, Genesis and Associazione Rinascita Vita Onlus, associations whose membership consists of relatives and friends of severely disabled persons and of doctors, psychologists, lawyers and experts in bioethics who assist such persons. On 19 November 2008 the Court received an application from Associazione Rinascita Vita Onlus (no. 55483/08).

The applicants complain principally, under Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment) and 8 (right to respect for private and family life) of the European Convention on Human Rights, of the possible effects of the decision of the Milan Court of Appeal to authorise B.P., the guardian of E.E., who is severely disabled and has been in a persistent vegetative state for several years, to discontinue his daughter’s artificial nutrition and hydration.

The applicants requested the Court to apply Rule 39 of its Rules of Court in order to obtain a stay of execution of the decision in question.

On 19 November 2008 the President of the Chamber to which the case had been allocated decided to refuse the requests for interim measures made by the applicants. The applicants were informed of the decision and asked to indicate whether they wished to maintain their applications. Should they decide to do so, the Court will rule in due course on the admissibility and merits of the applications.
I will keep you updated on any follow-up decisions or a possible judgment.

Thursday, 20 November 2008

Gender Discrimination EU-ECHR

Professor Samantha Besson of the University of Fribourg has just published 'Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?' in the newest issue of the Human Rights Law Review (vol. 8, No. 4, 2008, pp. 647-682). Here is the abstract:

Gender discrimination is addressed differently under Article 14 ECHR and EU primary and secondary legal provisions. This is no wonder, since the role and scope of non-discrimination law in both legal orders are not the same, and since the scope of jurisdiction of the European Court of Human Rights and the European Court of Justice applying those provisions differ drastically as well. While this observation is not new, the potential discrepancy between the two non-discrimination regimes and the two Court's case law constitutes an increasing concern for national authorities and individuals in the 27 European Union (EU) Member States. As a result, gender discrimination is one of the many facets of the current human rights competition raging between the two European organisations, but also of the recent judicial attempts at minimising potential conflicts through mutual borrowings. The present article starts by identifying and comparing the role and scope, as well as the various material and procedural constitutive elements of the two regimes of non-discrimination on grounds of gender. The author argues for a greater systematisation of the two regimes before fruitful borrowings can take place or else the latter will jeopardise the overall coherence of the law on gender discrimination and the specificities in each of the two regimes. The article also argues that EU accession to the ECHR will not, as it is often argued, threaten the specificity of EU anti-discrimination law, but on the contrary enhance the complementarity between EU social law and European human rights law more generally.

Tuesday, 18 November 2008

Interim Measure for 11 Afghans

Yesterday, the President of the Court decided to apply Rule 39 of the Rules of Court and ordered France not to remove a group of eleven Afghan nationals to Afghanistan. The group is being held in administrative detention pending their removal on a flight organised by France and the United Kingdom. They lodged applications last week complaining that removal would violate Article 3 ECHR (real risk of torture or ill-treatment by the Taliban) and Article 4 of Protocol 4 (prohibition of collective expulsion of aliens).

In a somewhat comparable case decided last year - Sultani v. France - the Court held that expulsion would not violate the above-mentioned rights.

For a more extensive analysis of the legal consequences of interim measures, see my earlier post here.

Monday, 17 November 2008

New Issue European Human Rights Law Review

A new issue of the European Human Rights Law Review has recently been published. These are the contents of the issue (no. 5 of 2008), according to the International Law Reporter:

- Anthony Lester & Paola Uccellari, Extending the Equality Duty to Religion, Conscience and Belief: Proceed with Caution- Colm O’Cinneide, A Modest Proposal: Destitution, State Responsibility and the European Convention on Human Rights
- Kate Smyth, R. (on the application of Al-Jedda) v Secretary of State for Defence: Human Rights and Accountability in International Military Operations
- Catherine Dupré, After Reforms: Human Rights Protection in Post-Communist States
- David G. Barnum, Foreign Intelligence Surveillance in the United States: Update- Achilleas Demetriades, Silvia Bartolini, & Theodora Christodoulidou, Life Imprisonment as Inhuman and Degrading Treatment: Kafkaris v Cyprus before the European Court of Human Rights

The Kafkaris judgment can be found here.

Friday, 14 November 2008

Hate Speech Calendar Judgment

A calendar that promotes hate speech. That was the object of attention in a recent judgment of the Court in the case of Balsyte-Lideikiene v. Lithuania. Although handed down already two weeks ago, it is very worthwhile to read. The case concerns the so-called Lithuanian calendar, which in its 2000 version contained several extremely negative statements about Jews and Poles. The most appalling of which is probably that Jews are accused of genocide of the Lithuanian nation. After complaints from the Lithuanian parliament and from neighbouring countries, the authorities instituted an investigation, in the context of which expert opinions were commissioned on the question whether the calendar "promoted ethnic, racial or religious hostility". The experts came from different fields: history, psychology, policital science, and library science. The applicant was fined by the national courts, which based themselves to a considerable extent on the experts' reports.

The European Court found, by six votes to one, that Article 6(1) ECHR had been violated. This happened on account of the fact that the applicant had never been allowed to question the experts, even though the national judiciary extensively relied on their findings. The Dutch judge, Egbert Myjer, has attached an intriguing dissenting opinion. One of his main arguments is that the assessment of whether a certain expression promotes hatred is "first and foremost a legal question". Thus the expert opinions, in his view, could not reasonably have contributed to the national court's decision-making. He contrasts this to other situations, where technical or medical issues are at stake or where one needs to check whether a painting is a real Rembrandt or not! Personally, I fail to see what the real difference is in this sense between expertise from those sciences and the ones in this case. It reminds me a bit of former OSCE High Commissioner on National Minorities, Max van der Stoel, who famously claimed that he knew a minority when he saw one.

The Court also found, unanimously, that Article 10 ECHR (freedom of expression) had not been violated. In the latter context the Court explicitly referred to the specific Lithuanian historic context and to the country's international obligations (such as the obligation under UN human rights treaties) to combat advocacy of hatred.

Thursday, 13 November 2008

Article on Constitutionalization of ECHR

Wojciech Sadurski of the European University Institute posted a working paper on SSRN last week entitled 'Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments'. It contains interesting thoughts on the connection between pilote judgments and a more constitutional role for the European Court of Human Rights. Here is the abstract:

The accession of Central and East European States into the European Convention of Human Rights system was both a threat and a promise to the system. The threat resulted not only from the substantial increase of the number of Member States and that of the case-load, but also from the demise of a consensus which was, originally, presupposed by the system of protection of human rights in Western Europe: original members of the Council of Europe were "like-minded" and the Convention system did not represent a challenge to their internal apparatus of human rights protection. This paper, however, focuses on a promise: a possibility for the European Court of Human Rights to abandon once and for all the fiction of it being merely a sort of super-appellate court which scrutinizes individual decisions rather than laws in Member States. This shift towards a quasi-constitutional role, going beyond the simple identification of wrong individual decisions so as to point to systemic legal defects, was triggered by systemic problems within the new Member States, while also facilitated by collaboration between the European Court and national constitutional courts. The emergence of so-called "pilot judgments" is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court effectively "pierces the veil of the State", and positions the European Court as a quasi-constitutional judicial body at a pan-European level.

Wednesday, 12 November 2008

Clarification of Trade Union Rights

Just released: today the Grand Chamber of the Court delivered its judgment in the case of Demir & Baykara v. Turkey, an important case on trade union rights. The Chamber unanimously found that Article 11 ECHR had been violated. Interestingly, the case had been brought to the Grand Chamber by internal appeal of Turkey, after the Court had already concluded in its judgment in the case in 2006 that Article 11 had been violated.

Notably, the Grand Chamber - in a deviation form earlier case law, especially from the 1970s - held that the right to bargain collectively had become one of the essential or core elements of the right to join and form trade unions. In doing so, the Grand Chamber referred both to international legal developments and changes on the national level in ECHR state parties. One may especially note the reference to the EU's Charter of Fundamental Rights, which will become binding once (if ever) the Lisbon Treaty will be fully ratified. Once again, the Convention proves to be a living instrument! In addition, the judgment also contains noteworthy thoughts on the specific Article 11 rights of civil servants.

Monday, 10 November 2008

Negative Labelling of Osho Movement

Government campaigns warning about religions. It might be a sensitive topic anywhere, but maybe especially so in Germany. The isse was at the core of a judgment decided by the Court last week: Leela Förderkreis e.V. and Others v. Germany. The applicants in the case complained about a government campaign started in 1979 to warn people about the dangers of ("psycho") sects who were, according to the authorities "destructive" and "manipulated their members".

In this case, the applicants were organisations of followers of Osho, earlier known as the Bhagwan movement, which has been active in Germany from the 1960s and 1970s onwards. They instituted proceedings against the government's campaign in 1984. Those lasted until 2002 when Germany's Constitutional Court forbade the use of the wording "destructive" and "manipulated their members", but also ruled that the authorities could inform the public with adequate information on the religious groups concerned.

The Helsinki Federation for Human Rights in Warszaw intervened as a third party, indicating that using the term "sects" by the authorities had a negative connotation and was defamatory.

The legal issues concerned two points. First, the length of the proceedings. The Court considered the period of 18 years to have been too long and found a violation of Article 6(1) ECHR. Even taking into account the German reunification at the beginning of the nineties (which Germany had brought into the discussion) the period was excessive. The European Court remarked that only a relatively small number of cases before the Constitutional Court concerned reunification and could not explain - let alone justify - the long time that the proceedings lasted.

The other point was the campaign itself. The Court first considered that the views of the Osho movement were of sufficient "cogency, seriousness, cohesion and importance" to be seen as a belief within the meaning of Article 9. Since it also accepted that the campaign "may have had negative consequences" for the applicants, the Court assumed that there had been an interference with the rights protected under Article 9. The Court then elaborately considered whether the interference was prescribed by law (in this case the Basic Law of Germany) and answered in the affirmative. Although that law was quite broad and general relating to the state's information duties, the Court accepted (para. 89) that:

[I]t can prove difficult to frame law with a high precision on matters such as providing information, where the relevant factors are in constant evolution in line with developments in society and in the means of communication, and tight regulation may not be appropriate. In these circumstances, the Court considers that the Government's information-imparting role did not require further legislative concretisation.
In doing so, it effectively gave the state a relatively large margin, although it also re-emphasized that the state should remain neutral in religious matters. In addition, the Court accepted that the interference served the legitimate aims of protecting public safety and public order and the protection of the rights of others. Finally, the Court concluded that the interference had been necessary. It noted that (paras. 98-99):

[T]he increasing number of new religious and ideological movements generated conflict and tension in German society, raising questions of general importance. The contested statements and the other material before the Court show that the German Government, by providing people in good time with explanations it considered useful at that time, was aiming to settle a burning public issue and attempting to warn citizens against phenomena it viewed as disturbing, for example, the appearance of numerous new religious movements and their attraction for young people. The public authorities wished to enable people, if necessary, to take care of themselves and not to land themselves or others in difficulties solely on account of lack of knowledge.

The Court takes the view that such a power of preventive intervention on the State's part is also consistent with the Contracting Parties' positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction.
It held that the term "sects" was used at the material time for any "non-mainstream religion" even if it had a pejorative connotation. By five votes to two the Court found no violation.

The dissenting opinions of the Bulgarian and Macedonian judges strongly disagree. They indicate that the German authorities overstepped the boundaries of neutrality and treated non-mainstream religions differently from mainstream religions. In addition, they stress that at the relevant time there were no indications that the Osho movement harmed the population.

In this case, my opinion is that both sides have good arguments. In this sensitive area it is very difficult to strike the right tone. One may easily understand the danger of a government pointing out the "dangers" of some religions. On the other hand, one may also see the negative consequences of the activities of some groups. What might seems harmless now may not have seemed so three decades ago. It seems anyhow necessary for the state to base such decisions on solid ground rather than just on public discussion or fears.

Results of Article 10 Seminar

On 10 October a special seminar on the Freedom of Expression (Article 10) was held at the European Court of Human Rights. The papers presented there and the conclusions are now available here. They include critical assessments of recent restrictive trends in the Court's case law and comparisons with the national level and other regional human rights systems. Recommended reading for Article 10 fans!

Thanks to Darian Pavli of the Open Society Justice Initiative for pointing out the link to me!

Friday, 7 November 2008

Imprisoned Expressions - Kandzhov v. Bulgaria

In July 2000, Aleksandar Kandzhov put up two posters which allegedly insulted the Minister of Justice. In addition, he collected signatures calling for the resignation of the Minister. Within a day, Kandzhov was arrested and detained on the charges of insult and hooliganism. Three days later he was released on bail. In subsequent proceedings he was first convicted and later acquitted of the charge of hooliganism. The charge of insult was dropped.

In Strasbourg, the applicant complained about violations of his right to liberty and of the freedom of expression. Yesterday, the European Court issued its judgment in this case: Kandzhov v. Bulgaria. The Court meticulously analysed - and struck down - each step of the Bulgarian authorities' behavior. First it noted that "insult" was a privately prosecutable offence for which one could not be detained. Secondly, the charge of hooliganism had proven to be totally unfounded. As the Bulgarian Supreme Court had found, the applicant's behaviour had been peaceful and non-obstructive. Nor had there been any proof that the authorities could have reasonably believed that the applicant's conducted had amounted to hooliganism. Thus the relevant requirements of Article 5(1) ECHR (lawful detention and reasonable suspicion) had not been met. In addition, the Court found a violation of Article 5(3), the right to be brought promtply before a judge. Since this took 3 days and 23 hours, without any special difficulties or special circumstances applying, the requirement of promptness had been violated. The Court's reasoning on Article 10 partly followed from these conclusions. Mainly, the interference with the freedom of expression had not been lawful (the detention). In addition, albeit superfluous in the strict sense, the Court noted that the interference had been disproportionate. It held that the authorities "chose to react vigorously and on the spot in order to silence the applicant and shield the Minister of Justice from any public expression of criticism" (para. 73). In the same pragraph it added - in line with existing case law - that in a democracy:

[T]he actions or omissions of the Government and of its members must be subject to close scrutiny by the press and public opinion. Furthermore, the dominant position which the Government and its members occupy makes it necessary for them – and for the authorities in general – to display restraint in resorting to criminal proceedings, and the associated custodial measures, particularly where other means are available for replying to the unjustified attacks and criticisms of their adversaries.
Another telling example of the Court's crucial role in indicating the boundaries of state (and specifically politician's) action vis-à-vis its citizens!

The press release can be found here.

Tuesday, 4 November 2008

Battle of Wounded Knee in Istanbul

Agressive youth, policemen too ready to shoot, and a girl at the wrong place at the wrong time. Such are the sad ingredients in the Turkish case of Evrim Öktem, in which the Court issued its judgment today. It all started with a patrol of three police officers in plain-clothes that saw a group of young people hanging a banner of the Revolutionary Organisation of Students on a school in Istanbul thirteen(!) years ago. When the police ordered them to stop, the youths became agressive and threatening. Consequently, the policemen fired warning shots, when pursuing the demonstrators. 14 year-old Evrim Öktem, who claimed to have been at the place of the shooting by coincidence, was hit in the knee by a bullet that had ricocheted against the ground. For two months she was unable to walk. The family of the wounded girl later pressed charges against the policeman who had fired the fatal shot (and had also been the one that had brought her to a hospital). Pronouncement of a verdict in his case was, however, deferred indefinitely.

The Court unanimously found a double violation of the right to life (Article 2 ECHR). One might wonder why the right to life is applicable here, as the applicant did not die in the shooting. The Court here followed a line of case law going back to the Greek case of Makaratzis (2004) in holding that situations could fall within the scope of Article 2 if the force used was potentially lethal, with refernece to the criteria formulated in that Greek case. In the current Turkish case the Court held that irrespective of the policeman's intent, the kind of force used and the severity of the wound placed the case within the scope of the right to life. On the substantive side, the Court concluded that the great freedom of action of the policemen was not limited by any proper training or rules and regulations on the use of force in times of peace. Apart from this material violation, the Court also found a procedural violation of the right to life on account of the deferral of a verdict in the criminal case against the policeman, resulting in de facto impunity. The applicant was awarded 16,000 euros for non-pecuniary damages.

Just like in Makaratzis, this judgment shows the essential importance of clear guidelines on the use of force. To formulate and implement such regulations is part and parcel of a state's obligations under the ECHR's right to life.

The judgment itself is in French, but a press release in English can be found here.

Monday, 3 November 2008

New Website of the Court

As part of its celebrations, the Court has donned itself with a new electronic garment: the website has been renewed and the portal now offers the choice to go to either a completely English or completely French version. In general, the same structure has been maintained, with a bit more colour and a special part on the tenth anniversary.

ECHR auf Deutsch

For readers fluent in German, there is a great resource available on the internet: This site, managed by dr. Marten Breuer of the University of Potsdam, is a true Fundgrube of ECHR information in German. Its main appeal lies in its extensive overview of German translations of ECHR judgments, with references to the relevant law journals: a great tool for practitioners. In addition, it contains many links to other sites and a list of ECHR handbooks in the German language. Recommended, or should I say, 'empfohlen'?

Thanks for pointing this out to me, Marten!

Friday, 31 October 2008

Hurray for the Court!

Tomorrow the new European Court of Human Rights will exist exactly ten years, as I reported earlier. In spite of all the current problems, that is a reason to celebrate! As president Costa remarked yesterday:

Much has been achieved over the last ten years, which has seen over 9,000 judgments delivered and human rights jurisprudence evolve into a common language understood and used by legal professionals and others throughout Europe and beyond. It is enormously important that the Court should be able to continue to play to the full its role as a guarantor of democracy and the rule of law in the 47 States through which its jurisdiction extends. This means that the Court will have to adapt to cope with the massive inflow of cases which it has experienced since 1998, that further reforms to the system are required and, above all, that at the beginning of the 21st century and a few weeks before the 60th anniversary of the Universal Declaration of Human Rights all the member Governments of the Council of Europe must reaffirm their commitment to effective international human rights protection, while ensuring that their domestic systems offer citizens the possibility to seek redress for human rights breaches at home.
May many more years follow and may the Court stay afloat in the endless sea of applications!

Non-Refoulement under ECHR

My former colleague of Leiden University, Maarten den Heijer (see his earlier post on this blog here), has just published an article in the European Journal of Migration Law, entitled 'Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights' (vol. 10, 2008, pp. 277-314). He intriguingly analyses to what extent other Articles of the ECHR than 2 and 3 are relevant in the context of non-refoulement. Here is the abstract:

This article challenges the assumption that under the European Convention of Human Rights only Articles 2 and 3 bear relevance in cases of refoulement. By unraveling the explicit and implicit principles applied by the European Court of Human Rights and elaborating upon earlier theoretical attempts to ascertain the impact of the Soering judgment on extradition and expulsion cases, it is argued that there is no clear dichotomy of rights within the European Convention and that the higher threshold for applying Convention standards to cases of expulsion in which maltreatment is suffered in the receiving country is dependent on the notion of a 'fundamental value'. Albeit a somewhat nebulous concept, this notion is likely to encompass not only Articles 2 and 3, but also norms protected by other provisions, or at the least certain intrinsic components of those other provisions.
Highly recommended!

The article is accessible through Ingenta for (academic) subscribers.

Wednesday, 29 October 2008

New Book on ECHR

Helen Keller and Alec Stone Sweet, of the universities of Zürich and Yale respectively, have just published a new book on the ECHR: A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008). It seems to be a useful addition to the growing literature on the reception of the European Convention on the national level. Here is the abstract:

This volume focuses, comparatively and dynamically, on the reception of the ECHR regime within the national legal orders of the Member States of the Council of Europe. The definition of "legal order" used is expansive, including the legislature, the executive, the judiciary, and any public authority established through constitutional and public law that produces or applies legal norms. The central inquiry of the book is how, through what mechanisms, and to what extent, the national legal orders of the Member States are coordinated with, adapted to, or adjusted by the ECHR - emphasizing both the cooperative and conflictive aspects of reception.

The book brings together a series of structured-focused comparisons: each chapter undertaking a comparative case study which collects and analyzes basic data on the reception of the ECHR within national legal orders. These structured-focused comparisons, whose purpose is not so much to test theory, but to develop appropriate theoretical concepts and to generate hypotheses, work on the assumption that comparing two, relatively like cases offer a better opportunity to build more general theoretical frameworks.

Through an examination of a set of general questions about how national decision-makers - governments, legislators, and judges - have reacted to the evolution of European human rights law, the chapters enquire how various actors within national legal orders could take decisions to either hinder or to enhance the status of the ECHR. What interests or values, individual or corporate, are judges maximizing? How has this affected the evolution of the ECHR? How do national constitutions take into account treaty law (or international law generally)? Do separation of powers doctrines (or other explicit provisions of public law) permit or prohibit the judicial review of the legal validity of legislative and executive acts with reference to "higher" norms? To what extent should the federal or unitary nature of a Member State make a difference to reception? That is, should we expect the territorial distribution of powers and competences - judicial, legislative, administrative - to have an effect on the status or effectiveness of the ECHR, and if so, how?

Tuesday, 28 October 2008

Another Victory for the Freedom of Assembly

Last Thursday the Court found a violation of the right to the freedom of assembly (Article 11 ECHR) in the case of Sergey Kuznetsov v. Russia. The case concerned a small-scale peaceful demonstration in 2003 in front of the Sverdlovsk Regional Court building. The demonstrators distributed leaflets concerning the alleged corruption of the Court's president. The demonstration itself occurred without any problems, but the applicant was subsequently fined for violating the law on demonstrations (he had filed an application 8 days instead of the required 10 days in advance), for obstructing the passageway to the court and for demonstrating with another aim than the one he had asked permission for (slander of the court's president instead of uttering concern about general problems of judicial protection).

What is interesting is that the European Court found a violation, even though the applicant himself had obviously violated the time limits under domestic law. This is another example of the European Court pointing out to domestic authorities that they should not be overly formalistic. One should bear in mind that the specific context of the case led the Court to this conclusion: it was decisive that the applicant's violation of the notification deadline did not prevent the authorities from properly preparing for the demonastration (such as organsing police presence). The demonstration itself was peaceful, did not block the entry to the Court, and did not amount to defamation, incitement to violence or the rejection of democratic principles.

With this judgment the Court continues the line in its case law of 2007 by putting the emphasis on the practical elements of the right to freedom of assembly at the expense - and rightly so, I would say - of purely formalistic notions.

(And just to be clear: the photograph is of another demonstration).

Thursday, 23 October 2008

Moratorium on Extraditions to Turkmenistan

Today the Court established a de facto moratorium on extraditions from ECHR state parties to Turkmenistan. In its judgment in the case of Soldatenko v. Ukraine, the Court found that the extradition of the applicant from Ukraine to his own country would violate Article 3 ECHR (prohibition of inhuman or degradign treatment). Nikolay Ivanovich Soldatenko left Turkmenistan in 1999 a few months after an indictment was issued against him for inflicting bodily harm. In 2007 he was arrested by Ukraine on the basis of Turkmenistan's request for extradition. Soldatenko applied for and got an interim measure from the European Court not to be extradited pending the procedure in Strasbourg.

What is really remarkable in today's judgment is that the Court found that in general the detention conditions in Turkmenistan at this moment are so bad and the occurence of torturing of suspects to extract confessions so widespread that extradition of a suspect to that country would violate Article 3 ECHR. One may note that this is irrespective of the (ethnic) status of the applicant or the kind of crime with which he is charged. This amounts to a moratorium, at least for the time being, of extraditions to the central Asian republic! The Court based itself on reports of the United Nations, the United States State Department, the Helsinki Federation for Human Rights and Human Rights Watch of 2006 and 2007. Given this wide basis of information on which the Court built its judgment it is unlikely that this moratorium will be lifted any time soon, unless the situation in Turkmenistan drastically improves.

Wednesday, 22 October 2008

New Method of Compensation under Article 41

Yesterday, the Court issued its judgment on just satisfaction in the case of Guiso-Gallisay v. Italy. The case concerned a rather straightforward situation of indirect expropriation. The Court seized the opportunity to introduce a new and more equitable method of awarding compensation under Article 41 ECHR. The Court's press release summarizes this new method as follows:

The method used hitherto was to compensate for losses that would not be covered by payment of a sum obtained by adding the market value of the property to the cost of not deriving earnings from the property, by automatically assessing those losses as the gross value of the works carried out by the State plus the value of the land in today’s prices. However, the Court considered that this method of compensation was not justified and could lead to unequal treatment between applicants, depending on the nature of the public works carried out by the public authorities, which was not necessarily linked to the potential of the land in its original state. In order to assess the loss sustained by the applicants, it therefore decided that the date on which they had established with legal certainty that they had lost the right of ownership over the property concerned should be taken into consideration. The total market value of the property fixed on that date by the national courts was then to be adjusted for inflation and increased by the amount of interest due on the date of the judgment’s adoption by the Court. The sum paid to applicants by the authorities of the country concerned was to be deducted from the resulting amount.
We will see in the future whether this new method makes the satisfaction indeed more just.

Tuesday, 21 October 2008

Social and Economic Rights and the ECHR

Last week Jean-Paul Costa, the President of the Court, gave the opening speech (in French) at a seminar on economic, social and cultural rights organised by the French Human Rights Commission. It is well-known that the European Convention does not contain many socio-economic rights as such (the few exceptions being the protection of property and the right to education). Thus Costa specicifally pointed to that other important European human rights treaty, the European Social Charter. The Court has increasingly started to refer to that text. In addition, the Court's president noted that the Court has on a small scale, but for many years already, read socio-economic rights into the existing provisions of the Conventions. Notably, he implied that this development may continue in unexpected directions in the years to come. He referred to a recent application by a Russian citizen (Budina) who complained that his pension was so low that it violated Article 3 ECHR (prohibition of inhuman and degrading treatment). In his speech, Costa noted that such applications would have been dismissed as manifestly ill-founded in the past, but that such may not necessarily be the case in the future. In this respect, there are indeed some precedents: in its judgment in the case of Moldovan II (2005), the Court held that the living conditions of a group of evicted Roma were so horrible that there had been a violation of Article 3. This comes close to reading at least a minimum right to housing into the Convention in eviction cases.

Considering the difficulties of having socio-economic rights violations judicially reviewed on the international level, this is certainly a development to be followed. Keep the name Budina in mind!

Monday, 20 October 2008

Privacy Rights of Former Torture Suspects

Last week the Court issued its judgments in the two connected cases of Kyriakides v. Cyprus and Taliadorou and Stylianou v. Cyprus. The three applicants in the cases were retired police officers. In 1993 the three men were accused of torturing suspects (Taliadorou and Stylianou) and negligence in failing to stop this (Kyriakides, their superior). They were acquitted during criminal proceedings, since the prosecution failed to convince the judges that there was a prima facie case. However, an independent inquiry commission appointed by the Council of Ministers of Cyprus later found them guilty of the same offences and they were all dismissed by a ministerial decision of 1993. This decision was later quashed by the Supreme Court, since the three had been dismissed without any trial or disciplinary proceedings. What then followed was a judgment by a lower court awarding them compensation for damage to their psychological and moral integrity and reputation (one may indeed understand what the stigma of 'torturer' causes). The Supreme Court then reversed this compensation decision , holding that the moral injury had no causal link with the decision of dismissal.

The applicants mainly complained about a violation of the right to respect for privacy (Article 8 ECHR). They submitted that the last reversal of the Supreme Court had failed to take into account the harm done to their integrity and reputation. The European Court reiterated that such harm indeed fell within the scope of Article 8. It noted, however, the following in para. 56:

The Court also accepts that Article 8 cannot be relied on in order to complain of the damage to an individual’s reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence. It notes however that the applicants had been acquitted of the offences with which they had been charged and that the domestic court found that there had been no case for the defence to answer.
The European Court held that the Cypriot Supreme Court had failed to sufficiently explain its decision. No assessment of proportionality had been conducted. Thus the domestic courts had overstepped their margin of appreciation and Article 8 had been violated.

The applicants Taliadorou and Stylianou also complained about a violation of Article 6(2) ECHR - the presumption of innocence - but the Court held that the Cypriot Supreme Court's decision on compensation did not undermine their innocence and thus no violation was found on that point.

The judgments shows, as could be expected, that the stigma of torture clearly affects one's right to respect for private life. In addition, the Court clearly established that there is a clear difference in this respect between convicted and acquitted persons. Rightly so, of course.

Thursday, 16 October 2008

Suicide in Prison Judgment

Today, the Court issued its judgment in the case of Renolde v. France. The facts of the case are sad: in July 2000 Joselito Renolde committed suicide in prison. He had been arrested and put into detention a few months earlier pending his trial for amongst others armed assault on his former partner and their 13-year-old daughter. In July he attempted to commit suicide with a razor blade in his cell. He was examined by psychiatrists and he told them he had a "history of psychiatric problems" and that he had earlier lived in a psychiatric institution. Antipsychotic medication was prescribed from then onwards, but the prison authorities did not supervise whether he actually took the medication. A few days later he assaulted a warden and as a result was placed in a punsihment cell for 45 days. A few weeks later he was found dead, hanging from the bars in his punishment cell. The investigation showed that he had probably not taken his medicines for at least two or three days.

The application was brought by his sister. She complained about violations of Articles 2 (lack of preventive measures to protect her brother's life) and 3 (inhuman treatment and degrading treatment of her brother) ECHR. The Court agreed with her. Elaborating on its case law in Keenan and Rivière, it found violations of the two articles. It pointed at the specific needs of the mentally disturbed when being imprisoned. Especially the lack of supervision for the taking of the medication and the placement in a punishment cell (the most severe punsihemnt) were crucial elements for the Court.

One may also want to read the short concurring opinion of Judge Villiger,who points at the importance of supervision concerning the taking of medication in all cases of vulnerable persons. Thus, the importance of the matter, in his eyes, goes beyond psychiatric patients, but applies equally to e.g. children.

The press release of the case can be found here.

Wednesday, 15 October 2008

Two New Academic Articles on the ECHR

As I reported yesterday, the Court looked at its achievements and challenges at a seminar this week. For those interested in reading an external critique of the current problems facing the Court, the following recent article from the Human Rights Quarterly is recommended: Steven Greer, What's Wrong with the European Convention on Human Rights? (Volume 30, no. 3, 2008). This is the abstract:

The European Court of Human Rights faces a potentially fatal case overload crisis. But this is not the only problem confronting the European Convention on Human Rights. The underlying difficulty is the reluctance of the Strasbourg institutions, and others, to acknowledge that the Convention's main function is not to provide remedies for each deserving applicant. It is, rather, to promote convergence in the operation of public institutions at all levels of governance in Europe by articulating an abstract constitutional model which member states should then apply in their own domestic constitutional systems. This article seeks to make the case for "constitutionalization" and to explore the policy implications.
The same issue of the Quarterly contains another article on a highly topical issue in the ECHR context: Jill Marshall, Conditions for Freedom?: European Human Rights Law and the Islamic Headscarf Debate. Here is the abstract:

This article investigates women's choices and personal freedom by reference to the European Court of Human Rights' jurisprudence on national laws banning the wearing of the Islamic headscarf by adult women. The article focuses on how ECHR law is used and misused to shape women's autonomy rights, with specific emphasis on how women's rights to develop and express their own individual identities are impacted under this legal regime. The reasoning of the case law is criticized: no evidence was produced that the wearing of the headscarf was anything other than the women's choice; furthermore, preventing them from wearing it restricts their autonomy in a way inconsistent with other jurisprudence of the same court.

Tuesday, 14 October 2008

10 Years of the New Full Time Court

Yesterday, the Court organised a seminar to commemorate that in a few weeks from now, on 1 November, it will be exactly ten years ago that Protocol 11 to the ECHR entered into force. The Protocol merged the European Commission of Human Rights with the Court and the Court became a full time functioning institution. Amongst others, the Court used the seminar to meet up with NGOs. President Costa held two speeches, which can be found here and here (both in French). Webcasts of the meeting can be found here and here. Yes, the audiovisual department of the Court does a lot to keep us all informed!

Monday, 13 October 2008

Another Echo of WW II

Two large scale problems arising from World War II were dealt with by the Court in the same month. Last week, I already reported about the finalisation of the Court's pilot case procedrue in the so-called Bug river cases, concerning Poles who had to leave their homes at the end of the War when parts of Eastern Poland were incorporated into the Soviet Union. As a form of compensation for its lost territories Poland was given parts of Eastern Germany. Thus Poland in effect moved to the West. Many of the Polish refugees from the East settled in these territories. The Germans living in those regions were, in turn forced to flee further Westwards, having to leave behind most of their properties.

Last week the Court declared an application concerning the last group inadmissible. The complainants, united in the legal person Preussische Treuhand Gmbh & Co. KG, had lodged a complaint against Poland. Their main claim was that Poland had violated Article 1 of the Convention's First Protocol (property protection) since the taking of the applicants' properties had no legal basis under international law. The depossessions were, according to the applicants, undertaken in a context of ethnic cleansing. They claimed that this crime against humanity was part of a continuing violation of their rights under the Convention. They had never received any compensation.

The application was declared inadmissible on several grounds. As to the Court's jurisdiction ratione personae, it held that the complained acts (the expulsions) could not be attributed to Poland. As the Court noted, large groups of Germans had been forcibly evacuated by the Nazis towards the end of the War and many others had been forced to flee the approaching Soviet Army. During this period the state of Poland had no de facto or de iure control over the territories involved. In addition the Court held that the situation could not be seen as a continuining violation, as for example in Loizidou v. Turkey (concerning Northern Cyprus), since in this case the formal expropriations were legally valid Polish laws of 1946. Since Poland ratified the ECHR only in 1994, the impugned acts fell outside the Court's jurisdiction. No Polish restitution laws existed on this point. As the Convention does not include a duty to enact restitution laws, the application was also inadmissible ratione materiae.

Although I find the Court's argumentation on the separate points convincing, a small internal incongruency struck me: why does the Court on the one hand hold that Poland cannot be held accountable for the loss of property (since the areas were Nazi or Soviet occupied) and on the other hand consider the Polish expropriation laws of 1946 as defining for its temporal jurisdiction? Are we talking about two different sets of legal facts: the ethnic cleansing and loss of property in practice and the loss of property de iure? Only in that case does the Court's argumentation make sense. If so, then the applicant's lawyers did not have a lucky hand in the construction of their case and its presentation, it seems...

The leading case on the Court's temporal jurisdiction is the Grand Chamber judgment in Blecic v. Croatia (2006). For an analysis of the Court's case law preceding that case and the problem of continuing violations, see my own: A Lifeline in Time - Non-Retroactivity and Continuing Violations under the ECHR, published in the Nordic Journal of International Law, vol. 75 (2006) pp. 63-88 (available at IngentaConnect for subscribers and academic institutions).