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.

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.

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.

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.

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!