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!

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.

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.

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: www.egmr.org. 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!

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.

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?

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).