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!

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.

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.

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.

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.

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!

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.

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.

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.

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.