Summer Break

This blog's author is taking a summer break. The blog will be running again on 27 July. Wishing all my readers a very good summer!

New Vice-President

Today, the Court has elected Renate Jaeger from Germany as Vice-President of one of its Sections, with effect from 1 July 2009. This is the main part of the Court's press release:

Judge Jaeger was born on 30 December 1940 in Darmstadt and studied law at the Universities of Cologne, Munich and Lausanne. She was judge at the Social Court in Düsseldorf between 1968 and 1974, judge at the Social Court of Appeal of North Rhine-Westphalia between 1974 and 1987 and, between 1987 and 1994, judge at the Federal Social Court. After holding the post of judge at the Constitutional Court of North Rhine-Westphalia between 1988 and 1994, Mrs Jaeger was judge at the Federal Constitutional Court until 2004, when she was elected to the European Court of Human Rights.

The European Court of Human Rights is composed of a judge elected in respect of each of the 47 States that have ratified the European Convention on Human Rights. The Court is divided into five judicial Sections and each judge is a member of one of the Sections. The plenary Court elects the Presidents of Sections for a three-year term, and each Section also elects a Vice-President for a three-year period. Chambers of seven judges are formed within the Sections; the Court also sits as a Grand Chamber of 17 judges.

Article on European Consensus in Case Law

A new working paper of the University College Dublin has just been posted on SSRN entitled 'European Consensus: A Way of Reasoning', authored by Kanstantsin Dzehtsiarou. This is the abstract:

The margin of appreciation is probably one of the most controversial and widely discussed concepts that has been developed by the European Court of Human Rights. A few books and hundreds of articles were written to justify or challenge the margin of appreciation. European consensus argument has always operated in the shadow of the wider concept of margin of appreciation. However European consensus is called to define the landmark signs capable to turn around the ECtHR reasoning. Moreover, European consensus goes far beyond mere determination of the scope of margin of appreciation. Different types of consensus argument assist in defining the meaning of vague conventional terms, approached as a common denominator for autonomous interpretation, measure proportionality of interference. The present article aims to conceptualise the notion of European consensus and structure the divergent references of this concept in the case-law of the European Court of Human Rights.

Article on ECHR Impact in Russia

Alexei Trochev, of the University of Wisconsin, has just posted an article on SSRN on the impact of the ECHR in Russia, based on elaborate research of Russian sources: 'All Appeals Lead to Strasbourg? Unpacking the Impact of the European Court of Human Rights on Russia'. This is the abstract:

The author explores how Russian government officials and judges interact with the European Court of Human Rights (ECtHR) and argues that the Russian judiciary may be the most ECtHR-friendly branch of Russian government. Russian judges increasingly refer to the jurisprudence of the ECtHR, despite facing a host of pressures to do otherwise. As a result, the Russian legal system’s adherence to the standards of the 1950 convention is a complicated work in progress that develops in fits and starts and in which those in power wrestle with the question of their legal autonomy to limit the domestication of European human rights standards in Russia’s governance.

Well worth a read!

Problems in Appointing New ECtHR Judges

A procedural battle is being waged about the appointment of a new Ukranian Judge at the Court. There is currently no Ukrainian judge, which has meant thus far that for each case an ad hoc judge had to be appointed. The origin was the fact that in 2007 one of the three candidates on the list submitted to Ukraine withdrew. Thusfar, the authorities refused to submit a new third candidate. Instead they have submitted a completely new list, without even justifying such a move with a reference to exceptional circumstances. This is the report on the issue by rapporteur Dick Marty of the Parliamentary Assembly of the Council of Europe (PACE). Both Ukraine and PACE now want the Committee of Ministers to ask the Court for an Advisory Opinion. To be continued...

Thanks to my colleague Leo Zwaak for pointing this out to me!

Meanwhile PACE did elect a new judge in respect of San Marino, Ms.Kristina Pardalos. for an overview of the votes cast, click here. And here for the CVs of the three candidates.

The saga of finding a successor for the Maltese judge Bonello is also still continuing, as the Times of Malta reports. Thus far Malta has failed to submit a list of candidates which contains at least one woman.

Article on ECtHR Overruling its Own Case Law

The newest issue of the Human Rights Law Review has just been published. Its opening article is on the European Court of Human Rights: Alistair Mowbray, 'An Examination of the European Court of Human Rights’ Approach to Overruling its Previous Case Law'. This is the abstract:

The article begins with a consideration of the views of commentators, from both inside and outside the Strasbourg system, as to the nature of precedent within the jurisprudence of the Court. The approach of the original Court is then examined. This is compared with the contemporary case law of the full-time Court and three justifications for overruling established rulings are identified in the modern jurisprudence. Institutional features of the overruling process, including the roles of third parties and Court-directed changes, are addressed. Conclusions are drawn as to the present Court's reluctance to expressly acknowledge that it is overruling established case law and its failure to always provide adequate justifications of the social or scientific developments underpinning its revised jurisprudence.

Enjoy reading!

Article on Judges' Views on the Court

The newest issue of the Netherlands Quarterly of Human Rights (Volume 27, No. 2, 2009) contains an article by Robin C. White and Iris Boussiakou entitled 'Voices from the European Court of Human Rights'. It is based on interviews with a number of Strasbourg judges themselves and thus provides interesting insights on the Court's own views on its own function. Here is the abstract:

The future of the Strasbourg Court, a large and very busy court, has been the subject f much discussion. The capacity of the Court to handle the volume of admissible cases remains a significant challenge, and is made more difficult by the absence of ratification by all contracting parties of Protocol No. 14. Ten years after the establishment of the new permanent court, nine judges reflected on aspects of the work of the Court and the challenges it faces. The main purpose of this article is to put into the public domain some extracts from those interviews, which cover a wide range of issues. The voices from the Court are offered in the context of an argument that the contracting parties need to recognise the constitutional nature of the Strasbourg Court, and should be, but probably are not, willing to change the admissibility rules to make determination by the Strasbourg Court a matter of discretion rather than entitlement.

Pinto Law Receives Benefit of the Doubt

A very large percentage of the cases coming to the Court from Italy have traditionally concerned complaints about judicial proceedings at the domestic level that took too long and for which no remedy existed. After numerous instances in which the Court found violations, Italy introduced the so-called Pinto law which enables claimants on the national level to have such situations remedied, at least in the sense of being able to claim compensation. Today the European Court has declared a complaint about the effectiveness of the new law (in combination with another law) inadmissible in the case of Daddi v. Italy. Since the case itself is available only in French and is procedurally complex, here is the whole press release of the Court:

The European Court of Human Rights has declared inadmissible the application lodged in the case of Daddi v. Italy (application no. 15476/09) concerning the effectiveness of the “Pinto Act” after the entry into force of the second paragraph of Article 54 of Legislative Decree no. 112/2008, which provided that an application could not be lodged under the Pinto Act unless an urgent request for a hearing (istanza di prelievo) had first been made to the administrative courts.

The applicant, Alda Daddi, is an Italian national who was born in 1937 and lives in Comeana Carmignano (Italy). On 14 November 1994 Mrs Daddi asked the Tuscany Regional Administrative Court to set aside a number of planning decisions adopted between 1985 and 1994 by Carmignano District Council. On the same day she asked for a date to be set for the case to be heard. On 13 September 2006 she again asked for a date to be set for a hearing. The hearing was held on 12 April 2007. In a judgment of 10 May 2007, the Regional Administrative Court gave judgment in Mrs Daddi’s favour. As the judgment had not been served beforehand, it became final on 31 October 2008.

On 6 March 2009 Mrs Daddi complained to the European Court of Human Rights that the length of the proceedings had been excessive. She submitted that she had not lodged an application under the Pinto Act, since the Italian courts would have declared such an application inadmissible on account of the entry into force, on 25 June 2008, of the second paragraph of Article 54 of Legislative Decree no. 112/2008. The applicant emphasised that the proceedings had already ended by the date of the entry into force of the legislative decree. She relied on Article 6 § 1 (right to a fair trial within a reasonable time) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.

The Court considered that applications to the courts of appeal under the Pinto Act were an accessible remedy, and that there was not yet any cause to doubt the effectiveness of that remedy at present. It noted that it could not be excluded that the second paragraph of Article 54 of Legislative Decree no. 112/2008 might be interpreted by the Italian courts in such a way as to make any application under the “Pinto” procedure concerning the length of administrative proceedings which had ended before 25 June 2008 inadmissible solely because no urgent request for a hearing had been made. Such a practice might indeed give cause to absolve applicants in that position from the obligation to make use of the “Pinto” procedure.

However, the Court considered that mere doubt about the prospects of success of a particular remedy which was not quite evidently bound to fail did not constitute a valid reason to justify a decision not to avail oneself of it. Moreover, the applicant had not provided any example of a domestic decision to the effect she had relied on in her submissions. In addition, no settled case-law could have emerged from the higher courts in the short space of time which had elapsed between the entry into force of Legislative Decree no. 112/2008 and the lodging of the present application. Furthermore, the Court observed that an interpretation compatible with the principles of the Convention did not seem to be excluded by the wording of the provision concerned and that, as far as possible, such an interpretation was binding on the Italian courts both under the Convention and under domestic law. Consequently, the Court concluded that in order to comply with Article 35 § 1 of the Convention Mrs Daddi ought to have applied to the competent court of appeal by virtue of the Pinto Act. It followed that the application had to be declared inadmissible for non-exhaustion of domestic remedies.

Litigation and Implementation Research Project

A consortium of researchers from a range of Council of Europe member states has produced a series of reports on litigation before the European Court and implementation of its judgments on the national level: the JURISTRAS project. The website contains all the reports and a host of additional information. A very useful resource! This is the summary of the project:

The margin of appreciation doctrine of European Court of Human Rights gives states leeway in their interpretation of the European Convention on Human Rights. States also have the freedom to decide how they implement judgments finding violations against them. This has meant that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECHR and human rights actors (both governmental and non) in CoE member states. The nine partners of the project represent nine CoE members (Austria, Bulgaria, France, Germany, Greece, Italy, Romania, Turkey and the United Kingdom), who can in turn be seen to represent at least part of the vast diversity of countries in that intergovernmental organization. The project coordinators at the Athens-based Hellenic Foundation for European and Foreign Policy structured the project to focus primarily on discrimination and the rights of minorities and other marginalized groups, and those themes have featured in all of the reports produced thus far.

The various research reports, which have been spread over the course of three years, began with state of the art reports and case study reports, which provided the historical background for understanding the current relationships between each respective state and the Court. These reports provided insight into the complex ways that ECHR judgments affect, and are affected by, domestic actors, including governmental institutions, non-governmental human rights organizations, academics, lawyers and judges, the media, etc. Those reports were followed by a collection of comparative analyses, which focus on a variety of issues including gender rights, rights of ethnic minorities, rights of immigrants and asylum seekers, state-church relations, discrimination, and minority rights in general. Each partner then completed state-level policy recommendations, which were distributed to national legislators. Additionally, interviews with relevant individuals including government officials, prominent judges and lawyers, NGO executives, and leading academics were carried out to compliment the research and provide additional insight into the attitudes of key human rights players in each state.

Throughout the course of the research, different issues proved to be salient in each state. In some states discrimination against ethnic minorities has been identified as a pressing issue (Kurds in Turkey and Roma in Bulgaria, Romania and Greece). In others, cases involving gender and homosexual rights (United Kingdom) or freedom of expression (Austria) have made up a substantial amount of the case load, while still others experience immigration and asylum issues (France, Germany, United Kingdom), prisoner rights issues (Italy), religious minority issues (Greece) or issues regarding restitution of property seized by the state (Bulgaria and Romania). As the reports display, the human rights issues across the CoE vary considerably, often as much as language and culture.

The project is now in its final stages and one book discussing the project’s findings is set to be published, while a second is currently being drafted. The state of the art reports, the case studies, the policy recommendations and the comparative analyses are all available on the project’s website.

Landmark Judgment on Domestic Violence

The Court has just passed judgment in a landmark case on domestic violence: Opuz v. Turkey (Appl.no. 33401/02). The Court ruled that Turkey had failed to protect the applicant and her mother against grave instances of domestic violence and even found that the situation amounted to gender-based discrimination.

The applicant and her mother had both been threatened, gravely assaulted and beaten by the applicant's husband on numerous occasions during the course of their marriage. The husband had even tried to overrun the two with his car, thereby gravely wounding the mother. The injuries sustained had been life-threatening. Several times the two women complained to the police about the husband's actions. Although he was prosecuted for some of the violence, the prison term of three months was later commuted to a fine. After his release the violence continued and eventually ended in the killing of the mother by the applicant's husband.

The Court, in a very extensive judgment, dealt in detail with the applicant's claim that the authorities had failed to offer sufficient protection against domestic violence. Not surprisingly, it found a violation of the right to life (Article 2ECHR) concerning the murder of the mother, since the authorities had known from previously reported incidents that the husband was extremely violent. But more innovatively, it also concluded that Article 3 had been violated for "failure to take protective measures in the form of effective deterrence against serious breaches of the applicant's personal integrity by her husband." (para. 176). Importantly, the Court emphasized that when authorities are aware of instances of grave domestic violence it falls upon them to undertake effective action of their own motion. Simply waiting for the victim to step forward and to ask for protection is not sufficient. Finally, the Court found a violation of the prohibition of discrimination on the basis of gender (Article 14 ECHR) in conjunction with Articles 2 and 3. Again drawing on CEDAW and a range of case law of other human rights institutions, the Court held that (para. 191) "the State's failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional." As to the approach to domestic violence in Turkey and specifically in South-Eastern Turkey, where the applicant lived, the Court found that (para. 198):

The applicant has been able to show, supported by unchallenged statistical information, the existence of a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence.

The Court based itself amongst others by reports of NGOs such as Amnesty International, but also on that of a local NGO. Finally, it concluded:

200. Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence.
201. Taking into account the ineffectiveness of domestic remedies in providing equal protection of law to the applicant and her mother in the enjoyment of their rights guaranteed by Articles 2 and 3 of the Convention, the Court holds that there existed special circumstances which absolved the applicant from her obligation to exhaust domestic remedies. It therefore dismisses the Government's objection on non-exhaustion in respect of the complaint under Article 14 of the Convention.
202. In view of the above, the Court concludes that there has been a violation of Article 14, in conjunction with Articles 2 and 3 of the Convention, in the instant case.

The great importance of this judgment can be found in the Court's elaborate acknowledgement of the seriousness and viciousness of the crime of domestic violence. State obligations are spelt out in detail and the Court significantly recognised that violence against women is a form of unequal treatment. For comparative lawyers it is interesting to see how the Court draws on human rights norms from other jurisdictions, such as CEDAW and the Inter-American Belem do Para Convention (on the eradication of violence against women). An important step forward in the fight against domestic violence!

The press release of the Court can be found here. For the press release of NGO Interights, third party intervener in the case, and their brief submitted to the Court, click here. Even CNN is reporting on the case here.

Kenedi v. Hungary (Access to Information)

In its recent judgment Kenedi v. Hungary (Appl. no. 31475/05), the Court has given more clarifications on access to information. The applicant in the case was a historian doing research on the State Security Service. For several years he tried to get access to relevant information from the Ministry of the Interior, but to no avail. After continued refusals, he obtained domestic court orders to enforce access. The Ministry, however, continued to obstruct, for example by requiring that Kenedi would sign a declaration of confidentiality. Kenedi refused, also because the Court order had not mentioned confidentiality as a requirement. When he was later given access to part of the information concerned, he was not allowed to publish it. At the moment of the proceedings in Strasbourg Kenedi still did not have access to all documentation.

The Court found violations of a number of ECHR provisions. Article 6 ECHR (fair trial) was violated because of the total length of the proceedings and enforcement - over ten years. Article 10 was also violated in the Court's view. It reiterated that (para. 43) "access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant's right to freedom of expression." In this case, the inteference with the applicant's right had not been prescribed by law. The Court held (para. 45):

The obstinate reluctance of the respondent State's authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness. The essentially obstructive character of this behaviour is also manifest in that it led to the finding of a violation of Article 6 § 1 of the Convention (see paragraph 39 above) from the perspective of the length of the proceedings. For the Court, such a misuse of the power vested in the authorities cannot be characterised as a measure “prescribed by law”.

Finally, Article 13 ECHR (effective remedy) - in conjunction with Article 10 - had also been violated, since the Hungarian system did not provide for an effective way of remedying the violation of the freedom of expression in this situation.

Although again the Court does not formulate a general right to access to documents, what it does clarify is that once access on the national level is ordered (in this case by a court), such access should be effective and be given within a reasonable time. In this case, the authories had been so obstructive, that the European Court did not shy away from calling their behavior arbitrary.

A case for the history books - and for Court watchers too, of course!

The press release can be found here.

New Article on Behrami and Saramati cases

The decision of the Court on the actions of peacekeepers in Behrami and Saramati keeps yielding food for thought for academics, as a new article in the latest issue of the International Community Law Review shows. Alexander Breitegger of the University of Vienna has written 'Sacrificing the Effectiveness of the European Convention on Human Rights on the Altar of the Effective Functioning of Peace Support Operations: A Critique of Behrami & Saramati and Al Jedda'. This is the abstract:

The European Convention of Human Rights is unlikely to be an effective remedy for local individuals alleging human rights violations by European states participating in peace support operations abroad in the future. This conclusion is substantiated by analysing the restrictive and legally flawed stance taken by the European Court of Human Rights in the joint cases of Behrami and Saramati which had not only a precedential effect on this court's own jurisprudence but also on the case of Al Jedda v. UK Secretary of Defence before the UK House of Lords. Ultimately, the decisions in these cases may be understood by the choice to let the rationale of effective functioning of peace support operations prevail over the effectiveness of human rights protection of local individuals.

ECHR Seminar in London

On Wednesday 10 June, the Nuffield Foundation in London is hosting a seminar entitled 'Scrutinising the Practice of the European Court of Human Rights: Fact-Finding Missions and the Nomination & Election of Judges'. The event will include two panels:

Panel One: Fact-Finding Missions of the European Court
Prof. Philip Leach and Costas Paraskeva will outline the findings of a research project recently completed by the Human Rights and Social Justice Research Institute at London Metropolitan University analysing the fact‐finding missions carried out by the European Court (see: www.londonmet.ac.uk/hrsj). This project was funded by the Nuffield Foundation.
Chair: Andrew Drzemczewski, Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe

Panel Two: The Nomination & Election of Judges to the European Court
Andrew Drzemczewski, Head of Secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE), will discuss the appointment of European Court judges, and the role of PACE in the process. He will respond to the criticisms recently made about the process by Lord Hoffmann in the 2009 Judicial Studies Board Annual Lecture (see: http://www.jsboard.co.uk/).
Chair: Andrea Coomber, Legal Practice Director, Interights

Venue: The Nuffield Foundation, 28 Bedford Square, London WC1B 3JS. Attendance is free of charge but registration is essential as places are strictly limited. To register email hrsj@londonmet.ac.uk or telephone +44 (0) 207 133 5095.

New Scottish ECHR Resource

The Scottish Human Rights Law Group has launched and is still developing a website which contains a topical overview (including short summaries) of both ECHR cases and Scottish and other British cases concerning the ECHR. One can easily search the site through an index of ECHR provisions. A good resource and starting point for practitioners and for those interested in seeing how the ECHR is applied in national jurisdictions. Many thanks to Jonathan Mitchell, a Scottish lawyer, for pointing this out to me!

First Anniversary

Dear readers, today this blog celebrates its first anniversary. After almost 150 posts and over 45,000 page views, I am very happy that so many academics and practitioners interested in the protection of human rights in Europe have found their way to this blog and more importantly, have been able to use the information in their work. Your support and enthusiasm has kept me going. I will try and carry the spirit of the first year into the future! Do not hesitate to contact me if you have any ECHR related news or academic work you come across.

Paper on Judicial Borrowing and the ECtHR

Erik Voeten, of the University of Georgetown, has posted a working paper entitled 'Borrowing and Non-Borrowing among International Courts' on SSRN. This is the abstract:

Why do some international courts and judges extensively cite decisions from other courts whereas others do not? I argue that judges anticipate what external citations communicate to third parties. Depending on their institutional environments, judges expect more or less scrutiny for engaging sources of law other than the primary treaties that they are delegated to interpret. A global analysis of cross-citation patterns and an in-depth analysis of citations to and from the European Court of Human Rights (ECtHR) are consistent with the implications of this argument. Contrary to its transnationalist reputation, the ECtHR is cautious in citing other courts although ECtHR judges regularly refer to external decisions in separate opinions. The propensity of ECtHR judges to cite external sources is correlated with judicial ideology. The findings have implications for debates on transjudicial communication, the diffusion of international legal norms, the fragmentation of international law, and international judicial behavior.

The paper is written from a social sciences perspective and includes a 'Global Matrix of International Court Citation Patterns'. Enjoy reading!

Two Free Articles from HRLR

Dear readers, the publisher of the Human Rights Law Review has been so kind to make two recent ECHR-related articles from the Review freely available for all readers of this blog. The articles, both previously featured on this blog, are:
- Robin C.A. White and Iris Boussiakou, Separate Opinions in the European Court of Human Rights;
- Samantha Besson, Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?
Enjoy reading!

DNA Test to Establish Who the Father Is

Mater semper certa est, is an old Roman-law principle. But what about the father? That was at stake in a recent Russian case in which the Court rendered judgment last week: Kalacheva v. Russia (Appl.no. 3451/05). In 2003, the applicant had given birth to "a child born out of wedlock" as the judgment so formally stated. The applicant started proceedings against a Mr A, with whom she had had a relationship, in order to establish that he was the father of the child and to be able to claim child maintenance. The domestic court ordered a DNA test to be carried out by a specialised state institution. The outcome was that it was 99.9 per cent certain that A was the father. Nevertheless, the domestic court rejected Ms Kalacheva's claims, because the evidence had been obtained in breach of relevant procedures: instructions had not been properly folowed and as a result it was unclear whether the blood on which the DNA test was performed was indeed Mr A's. All subsequent claims by the applicant asking for a re-assessment of the evidence were rejected at the national level.

The Court assessed the case under Article 8 ECHR (right to respect for private life). The Court held that the situation indeed fell within the scope of that provision, since (para. 29):

Establishment of paternity of the applicant’s daughter is a matter related to the “private life” of the applicant, who bears full responsibility for her minor child. Recognition of the natural father, apart from its financial and emotional purposes, may also be important from the point of view of the applicant’s social image, her family medical history and the web of entwined rights and duties between the biological mother, biological father and the child concerned.

After this broad and nicely worded assessment, the Court indicated the importance of the DNA test as a piece of evidence in this case (para. 34):

The Court does not lose sight of the fact that today a DNA test is the only scientific method of determining accurately the paternity of the child in question; and its probative value substantially outweighs any other evidence presented by the parties to prove or disprove the fact of an intimate relationship. Furthermore, the applicant suggested that she and the defendant had concealed their relationship; hence the genetic examination could have been the only persuasive evidence of the disputed paternity.

Finally, the Court noted that a clear answer on the issue of paternity was also in the best interests of the child. By both declaring the first DNA test inadmissible and not ordering a second one. the domestic authorities had failed to strike a fair balance between the competing interests of the parties (note that no broader societal interest was at stake here), "with due regard to the best interests of the child".

For further references to other paternity cases dealt with udner Article 8 ECHR, I refer the reader to para. 28 of the judgment and to p. 147 ff. of Alastair Mowbray's 2004 book entitled 'The development of positive obligations under the European Convention on Human Rights by the European Court of Human Rights'.

Libel Amongst Politicians During Campaign

Political campaigns are almost never the highlight of civility and politeness, in any country. A recent case of the Court, Karakó v. Hungary (Appl.no. 39311/05), concerns the accusation of libel by one politician against another during an electoral campaign. Please find below a summary and some comments on the case by Darian Pavli of the Justice Initiative, who has been so kind to allow me to post it on here:

KARAKÓ v. HUNGARY

The following is a summary of the Karako judgment, which involves an Article 8 complaint by an Hungarian politician following the refusal of the Hungarian courts to allow the criminal prosecution of a critic for supposed libel against the applicant related to critical remarks made during an election campaign:

1. The judgment starts with the premise that there is no real conflict between article 8 and article 10 insofar as article 10.2 protects the rights of others, which would include rights recognized under “private life”;
2. However, there is no independent and general right to reputation under article 8: a “prudent approach” is required to finding positive state obligations to protect “private life in general” – any such measures should be consistent with article 10;
3. Cases involving reputation/defamation should be resolved under the framework of article 10 -- irrespective of which provision is invoked or the nature of complaint – since article 10 is the natural conceptual setting “specifically designed by the drafters” for solving such conflicts;
4. Article 8 protects both the personal identity (image etc) and personal integrity (self-esteem, development of personality and the like). These only extend to reputation, however, when the attack on reputation is so severe as to affect one’s personal integrity: that is when (a) the factual allegations (b) were of such a seriously offensive nature that (c) their publication had an inevitable direct effect (d) on one’s private life (reference to Petrina v. Romania, which had to do with allegations of secret service collaboration, a sore point in a post-Communist society) – by implication, value judgments should not trigger article 8 protection in principle;
5. Crucially: article 8 does not extend to harm to reputation that - as is usually the case - primarily affects one’s public standing (‘the external evaluation of the individual’), rather than self-esteem – according to the Court, this is a common distinction in European law (DP: usually known as the difference between insult and defamation), and article 8 was designed to protect personal integrity, not one’s social standing;
6. The judgment, rather explicitly, departed from the Pfeiffer v. Austria line of cases by noting that “reputation has only been deemed to be an independent right sporadically” – the lone dissenter in the case disputed this by arguing, in effect, that Pfeiffer etc was already settled law;
7. The expression at issue in the case was protected value judgment – had Hungary gone ahead with its criminal prosecution, it would have violated article 10 of the Convention.

Some of us believe that this ruling, if endorsed by other sections of the Court, would go a long way toward addressing the concerns of the free expression community regarding the proper balance between article 8 v. article 10 interests in the defamation context. The challenge will be for other sections of the Court, and eventually the Grand Chamber, to steer closer to the path of Karako, rather than Pfeiffer/Petrina. At the moment, I think it is fair to say there is diverging jurisprudence among the various sections on this question (or central parts thereof), and Karakó offers hope for a re-orientation that takes proper account of the implications for free expression.

Interestingly, Karakó is also one of two article 10 judgments issued in April that is classified by the Court’s own database as Importance 1 (“High importance, Judgments which the Court considers make a significant contribution to the development, clarification or modification of its case-law, either generally or in relation to a particular State”). The other one, another landmark case from Hungary, was Társaság (appl. no. 37374/05) on the right of access to state-held information and records.

New Articles in EHRLR

The newest issue of the European Human Rights Law Review contains several ECHR-related articles. The first is authored by Paul Mahoney and entitled 'A European Judicial Training Institute on Human Rights'. His plea for a new training instiute for jduges attached to the European Court is all the more noteworthy, since Mahoney was the registrar of the Court for a great number of years - a (former) insider's view on the need for it. Here is the abstract:

This article argues in favour of the institutionalisation of judicial training relating to the European Convention on Human Rights 1950 through the establishment of a European Judicial Training Institute on Human Rights attached to the European Court of Human Rights. Examines the reasoning behind the need for judicial training on the Convention and assesses whether such training should be dispensed at national or European level. Discusses the potential status, structure, and organisation of a Judicial Training Institute on Human Rights.

Secondly, an article by Marton Varju on 'Transition as a Concept of European Human Rights Law'. This is the abstract:

This article discusses, with reference to case law, the transition of the Central and Eastern European accession states, focusing on how the European Court of Human Rights has been able to accommodate the fact that many Contracting States required a complete transformation of their legal and political systems. Examines the distinction between rights under the European Convention on Human Rights 1950 that allow a margin of appreciation and those that prohibit such moves, including political rights, proprietary rights, and the application of arts 3, 6, 7, and 8 of the Convention.

Finally, Matthew Smith has written on 'The Adjudicatory Fact-finding Tools of the European Court of Human Rights':

This article discusses the adjudicative fact-finding techniques employed by the European Court of Human Rights. Examines: (1) the relevant jurisdictional framework, commenting on the reasonable deference to national findings of fact and the lack of strict rules of evidence; (2) the burden and standard of proof in proceedings under the European Convention on Human Rights 1950; (3) inferences and presumptions of fact as adjudicatory tools for fact-finding; (4) limits on the use of inferences and presumptions of fact in human rights adjudication; and (5) the implications of the findings of procedural violation of the Convention.

The articles can be found on Westlaw.