Judgment on Non-Religious Education in Poland

Human rights in classrooms - it seems to be a topic of increasing popularity (or concern) in Strasbourg these days. Yesterday, the Court issued its judgment in the case of Grzelak v. Poland. The case concerned a Polish boy who refused to attend reilgious education in the various primary (and later secondary) schools he attended for reasons of personal conviction, with the full approval of his parents who were agnostics. Since, for a lack of other pupils in a similar situation no alternative courses such as ethics were offered, he had to spend such hours alone, apart from the other pupils. According to his parents that made him the subject of social ridicule and exclusion. In spite of various demands by the parents, no inter-school ethics were organised, since the number of interested pupils was too small. On his school reports, the place was the mark for religion/ethics was instead filled up by a straight line.

The first complaint related to the fact that the marking with a line, although seemingly neutral in effect revealed the convictions of the applicant against his will. For in practice, most schools did not offer ethics courses but only religious ones. A straight line under the heading 'religion/ethics' thus would reveal more than one might want. The Court considered this part of the complaint under Articles 9 (freedom of religion) and 14 (prohibition of discrimination) taken together. First the Court re-emphasized that Articel 9 also protected non-believers. In para. 87 it held:

It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.

It continued by noting, in para. 93, on religious information:

The Court reiterates that religious beliefs do not constitute information that can be used to distinguish an individual citizen in his relations with the State. Not only are they a matter of individual conscience, they may also, like other information, change over a person's lifetime (see, mutatis mutandis, Sofianopoulos and Others v. Greece (dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002-X; and Sinan Işık v. Turkey, no. 21924/05, § 42, 2 February 2010). Although the above cases concerned identity cards, documents of arguably greater significance in a person's life than school reports for primary and secondary education, the Court nonetheless finds that similar considerations apply to the present case.

Especially in a country like Poland, with a great majority of the people adhering to one specific religion, the situation of the boy took on a "particular significance" (para. 95). In this case, in the Court's view, the very core of the boy's right not to manifest his convictions was infringed.

The second complaint related to the refusal to offer alternative courses in ethics to the boy. On that matter, the Court concluded under Article 2 of Protocol 1 (right to education) that Poland had remained within its margin of appreciation. After all, both religious and ethics education were optional and not compulsory, subject to the requirement that a minimum number of students is interested. The practice in Poland of a minimum seven pupils for such classes was in that sense not deemed unreasonable. No violation on that count therefore.

The Court was at pains to distinguish the case from its own decision in Saniewski v. Poland of 2001, in which it declared a very similar complaint on the straight line in school reports "manifestly ill-founded". The only dissenting judge in the Grzelak case, David Thór Björgvinsson, quite convincingly points out that the two cases are not that different. It seems rather that the Court, nine years later simply takes a different position. It would have been clearer if it would have openly argued so.

Article on Right to Individual Petition

Astrid Kjeldgaard-Pedersen of the University of Aarhus has just posted 'The Evolution of the Right of Individuals to Seise the European Court of Human Rights' (forthcoming in the Journal of the History of International Law) on SSRN. This is the abstract:

In at least two ways the year 2009 was a milestone for the European Court of Human Rights (ECtHR, the Court). On the bright side, the Court could celebrate its 50th anniversary and its continuous role as principal promoter of human rights in the 47 Member States of the Council of Europe (CoE, the Council). However, 2009 was also the year in which the number of pending cases before the Court passed the disturbing 100 000 benchmark.

Paradoxically, the main reason for both the Court’s success and its current crisis is the right of petition of individuals. The present article contains a detailed inquiry into the coming into existence of this central feature of the control machinery of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, the Convention) that was labeled a breakthrough in the field of human rights as well as in general international law.

Parts I-IV of the article provide a chronological account of the drafting processes leading up to the adoption of the ECHR in 1950, and Protocol 9 in 1990. In analysis of reports and meeting minutes from a number of organs set up in the realm of the Council, the study concentrates on two main questions: Why did the original Convention end up excluding individuals from the proceedings of the ECtHR? And what changed in the time between 1950 and 1990 to facilitate the individual’s right to seise the Court independently?

As parts I-IV reveal, the development of the ECHR control machinery provides an interesting example of the interplay – or rather lack of same – between the practical decision-making among the parties to a convention and international legal theory. Part V reflects on the extent to which the theoretical discussion on the position of individuals in international law influenced the evolution of the right of individuals to seise the ECtHR.

Paper on Effective Application of ECHR and EC Law in Cyprus

Nikolas Kyriakou of the European University Institute in Florence has just posted on SSRN an article on the national implementation of European norms. The paper is entitled 'National Judges and Supranational Laws on the Effective Application of the EC Law and the ECHR: The Case of Cyprus'. It takes issue with the domestic effect of EU and ECHR law in Cyprus and analyses the changes that have occured in the national legal order for their reception.

Court Information Note on Pilot Judgments

It may have been online for some time already, but I only just saw it and would like to bring it to your attention: the Court's registry has drafted a short information note on the pilot judgment procedure. For more information on the pilot judgment procedure, see als the recent book 'An Analysis of 'Pilot Judgments' of the European Court of Human Rights and Their Impact at National Level' and my own article in the Greek Law Journal, entitled 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges'.

Religious Oath in Court Proceedings Judgment

In Greece, witnesses and suspects in criminal proceedings are required to indicate epxlicitly if they do not want to take an oath on the Bible. This way they are forced to reveal their religious( or non-religouis) convictions. Four different people complained about this in Strasbourg and yesterday won their case, in which they were represented by the Greek Helsinki Monitor. In Dimitras and others v. Greece the Court decided that such an obligation violated the freedom of religion under Article 9 ECHR. This is an excerpt from the Court's press release on the relevant part of the judgment:

The Court reiterated that freedom of thought, conscience and religion, which went hand in hand with pluralism, was one of the foundations of a “democratic society” and that in its religious dimension that freedom was an essential part of any believer’s identity, as well as being a precious asset for atheists, agnostics, sceptics and the unconcerned. It had already held that freedom to manifest one’s religious beliefs included an individual’s right not to reveal his faith or his religious beliefs and not to be obliged to act or refrain from acting in such a way that it was possible to conclude that he did or did not have such beliefs – and all the more so when aptitude to exercise certain functions was at stake.

The applicants had been considered as Orthodox Christians as a matter of course, and had been obliged, sometimes in hearings, to point out that they did not subscribe to that faith and, in some cases, to specify that they were atheists or Jews in order to have the standard wording of the minutes amended. In some court records they were expressly described as “atheists” or “of the Jewish faith”.

This interference with their freedom of religion had been based on Articles 218 and 220 of the Code of Criminal Procedure and pursued the legitimate aim of the proper administration of justice. Article 218 regulated the taking of the oath in court, on the Bible. It was thus presumed in the Code of Criminal Procedure that all witnesses were Orthodox and willing to take the oath, as reflected in the standard wording of the records of court proceedings. Indeed, it is only exceptions to the rule that Article 220 provides for, allowing those who were not Orthodox Christians to take the oath in conformity with another religion or to make a solemn declaration if they had no religion or their religion did not permit oath taking.

The wording of Article 220 actually required people to give details of their religious beliefs if they did not want the presumption contained in Article 218 to apply to them. Some of the applicants had had to convince the court officials concerned that they did not subscribe to any religion, failing which they would have had to take a religious oath. The incompatibility of the impugned legal provisions with Article 9 of the Convention was even more evident in Article 217 of the Code of Criminal Procedure, which stipulated that in any event all witnesses were required, amongst other information, to state their religion before testifying in criminal proceedings. The Court further noted that, unlike the Code of Criminal Procedure, the Code of Civil Procedure provided for witnesses, if they so wished and without any other formality, to be able to choose between taking a religious oath and making a solemn declaration.

The Court found that requiring the applicants to reveal their religious convictions in order to be allowed to make a solemn declaration had interfered with their freedom of religion, and that the interference was neither justified nor proportionate to the aim pursued. There had therefore been a violation of Article 9.

The problem was to be found firstly in the fact that the Code of Criminal Procedure itself started with the assumption that witnesses are Orthodox Christians and secondly that it preconditions exceptions to that rule on more information on the other religion (or lack thereof) that the witness adheres to, in order to decide on the kind of oath they are allowed to take. The practice is a clear example in which due to tradition a certain religion is given the main stage. It seems to me that this could be easily changed without prejudice to any religion into a more neutral provision, just as the one already existing in Greek civil law (and the ones existing in many other countries).

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

Interventions in Crucifix Case

A few days ago, I reported this, but it seems that the information in the Maltese newspaper was not correct:

As various newspapers report this week, at least ten ECHR state parties will intervene as third parties in the extremely debated case of Lautsi v. Italy. After the Court concluded in its judgment in November 2009 that the obligatory crucifixes in Italian public schools violated the ECHR (see my earlier post on the case here), Italy asked for a referral of the case to the Grand Chamber. A panel of the Court indeed decided to grant this and the case will be heard in a public hearing in Strasbourg on 30 June. The countries involved, mostly with Catholic or Orthodox Christian majorities, are Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, San Marino, Romania and the Russian Federation. All states, and in addition 12 NGOs, intervene in support of Italy. According to the Maltese newspaper The Malta Independent, no country or NGO has asked for leave to intervene arguing in support of Lautsi's position. The very high number of intervening parties is unique in the Court's history, as far as I am aware. Whatever the outcome of the Grand chamber judgment, this will be keenly awaited and strongly scrutinised.

As the comments to this post by the Helsinki Monitor show (thanks for that!), the number of countries might indeed be lower and the interventions by NGOs are not only in support of the Italian position, but several are also in support of the position of the applicant. Let's await the hearing at the end of this month to see which arguments the Court will scrutinise in its questioning of the parties.

Paper on EU Accession to ECHR and Antitrust Law

Charlotte Leskinen of the Instituto de Empresa has just published a paper on SSRN on an economic law aspect of the EU's accession to the European Convention on Human Rights. Her working paper is entitled 'An Evaluation of the Rights of Defense During Antitrust Inspections In the Light of the Case Law of the ECTHR: Would the Accession of the European Union to the ECHR Bring About a Significant Change?'. For a related post on this blog, see here. This is the abstract of the paper:

The Lisbon Treaty provides that the European Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This paper aims to establish whether the accession of the European Union to the ECHR would bring about a significant change regarding the protection of rights of defense that undertakings can invoke during inspections conducted in the course of investigations of alleged violations of the EU antitrust rules. The paper will examine the relevance of the case law of the European Court of Human Rights in this context by comparing the protection of the rights of defense granted under European Union law with the case law of the ECtHR. It will then draw some conclusions on the differences between the protection granted under European Union law and the ECHR and will outline the implications of the accession for the level of the protection of fundamental rights.

Protocol 14 Enters into Force

Today, a bit over six years after it was opened for ratifications, Protocol 14 finally entered into force. The Protocol reforms the supervisory machinery of the European Convention, rendering judicial decision-making more efficient. In addition, it introduces a new admissibility criterion: cases can be declared inadmissible if the applicant did not suffer a significant disadvantage. Finally, it opens up the possibility of EU accession to the ECHR.

The new, consolidated text of the European Convention on Human Rights and Fundamental Freedoms as amended by the Protocol can be found here. Reason for a small, but belated, celebration! Thorbjørn Jagland, the Council of Europe's Secretary General , and Jean-Paul Costa, President of the Court stated in a joint press release that "the entry into force of Protocol No. 14 represents a crucial step in improving the effectiveness of the Court and the protection of human rights in Europe. The Convention establishes the foundations of a common legal space across Europe. Protocol 14 will permit the Court to concentrate more on cases that raise important human rights issues, so it can play its role most effectively." That is only the first step of course as the follow-up - the Interlaken process - is just in its infancy.

Gäfgen Grand Chamber Judgment: Threatening with Torture and Fair Trial Rights

The Grand Chamber of the European Court of Human Rights just issued its keenly awaited judgment in the case of Gäfgen v. Germany today. The case centres on the fact that the applicant was threatened with torture when being questioned by the police. For the facts of the case and my analysis of the earlier Chamber judgment in 2008, see here. The Grand Chamber disagreed with the Chamber on a key point and decided that Mr Gäfgen, who had kidnapped and killed a young boy, could still be considered a victim, even though the German authorities had recognised violations of his human rights already at the national level. Specifically, it held that the punishments of the police officers involved had been relatively modest and did not function as sufficient deterrent for future violations. Thus, the Grand Chamber clearly once more wanted to send a strong signal on the absoluteness of the ban on torture (and even on the threat of torture). From this it followed that Article 3 ECHR had been violated. National authorities thus have to deal with such aberrations of their own personnel with utmost seriousness, even if the victim itself may not arouse a single grain of sympathy.

The Grand Chamber followed the ordinary chamber by holding that there had been no violation of Gäfgen's fair trial rights under Article 6 ECHR. Under both Articles (3 and 6) the Grand Chamber was divided (in both cases eleven votes to six). The various separate opinions are worhtwhile reading for some insights on the Article 3 discussions within the Court.

This is an excerpt from the press release:

Decision of the Court

Article 3

Treatment contrary to Article 3

It had been established by the German courts that a police officer, acting on the instructions of the Deputy Chief of Frankfurt Police, had threatened the applicant with being subjected to intolerable pain in order to make him disclose J.’s whereabouts. The Court considered that these immediate threats of deliberate and imminent ill-treatment had to have caused the applicant considerable fear and mental suffering. It observed that, as established by the domestic courts, the deputy police chief had ordered his subordinates on several occasions to use force against the applicant, his order could therefore not be regarded as a spontaneous act, but had been calculated in a deliberate manner.

The Court accepted that the police officers had been motivated by the attempt to save a child’s life. However, the prohibition on ill-treatment applied irrespective of the conduct of the victim or the motivation of the authorities; it allowed no exception, not even where the life of an individual was at risk. The Court considered that in the present case the immediate threats against the applicant for the purpose of extracting information from him were sufficiently serious to be qualified as inhuman treatment falling within the scope of Article 3. Having regard to its case-law and to the views taken by other international human rights monitoring bodies, it found, however, that the method of interrogation to which the applicant had been subjected had not reached the level of cruelty to attain the threshold of torture.

The applicant’s victim status

The Court was satisfied that the domestic courts, both in the criminal proceedings against the applicant and against the police officers, had acknowledged expressly and in an unequivocal manner that the applicant’s interrogation had violated Article 3.

It observed, however, that the police officers, having been found guilty of coercion and incitement to coercion, respectively, had been sentenced only to very modest and suspended fines. The domestic courts had taken into consideration a number of mitigating circumstances, in particular the fact that the officers had aimed to save J.’s life. While the Court accepted that the present case was not comparable to cases concerning arbitrary acts of brutality by State agents, it nevertheless considered that the punishment of the police officers did not have the necessary deterrent effect in order to prevent further Convention violations of this kind. Moreover, the fact that one of the police officers had subsequently been appointed chief of a police agency raised serious doubts as to whether the authorities’ reaction reflected adequately the seriousness involved in a breach of Article 3.

As regards compensation to remedy the Convention violation, the Court noted that the applicant’s request for legal aid to bring liability proceedings, following a remittal, had been pending for more than three years and that no decision had yet been taken on the merits of his compensation claim. The domestic courts’ failure to decide on the merits of the claim raised serious doubts as to the effectiveness of the official liability proceedings.

In the light of these findings, the Court considered that the German authorities did not afford the applicant sufficient redress for his treatment in breach of Article 3.

The Court concluded, by eleven votes to six, that the applicant could still claim to be the victim of a violation of Article 3 and that Germany had violated Article 3.

Article 6

As the Court had established in its case-law, the use of evidence obtained by methods in breach of Article 3 raised serious issues regarding the fairness of criminal proceedings. It therefore had to determine whether the proceedings against the applicant as a whole had been unfair because such evidence had been used.

The Court found that the effective protection of individuals from the use of investigation methods in breach of Article 3 may require, as a rule, the exclusion from use at trial of real evidence obtained as a result of a breach of that Article. It considered that this protection and a criminal trial’s fairness were only at stake however if the evidence obtained in breach of Article 3 had an impact on the defendant’s conviction or sentence.

In the present case, it was the applicant’s new confession at the trial – after having been informed that all his earlier statements could not be used as evidence against him – which formed the basis for his conviction and his sentence. The evidence in dispute had therefore not been necessary to prove him guilty or determine his sentence.

As regards the question whether the breach of Article 3 in the investigation proceedings had a bearing on the applicant’s confession during the trial, the Court observed that he had stressed in his statements at the trial that he was confessing freely out of remorse and in order to take responsibility for his offence, despite the threats uttered against him by the police. The Court therefore had no reason to assume that the applicant would not have confessed if the courts had decided at the outset to exclude the disputed evidence.

In the light of these considerations, the Court found that, in the particular circumstances of the case, the failure of the domestic courts to exclude the impugned evidence, secured following a statement extracted by means of inhuman treatment, had not had a bearing on the applicant’s conviction and sentence. As the applicant’s defence rights had been respected, his trial as a whole had to be considered to have been fair.

The Court concluded, by eleven votes to six, that there had been no violation of Article 6.

Article 41 (just satisfaction)

The applicant did not claim any award for pecuniary or non-pecuniary damage, but stressed that the objective of his application was to obtain a retrial. As there had been no violation of Article 6, the Court considered that there was no basis for the applicant to request a retrial or the reopening of the case before the domestic courts.

Three Property Rights Judgments

Last week, the European Court of Human Rights issued a number of important judgments which all evolve around the protection of property. In Sarica and Dilaver v. Turkey (available only in French), the Court held that the widespread practice in Turkey of de facto expropriation by the state represented a structural problem and was contrary to the Convention. This practice enabled the Turkish authorities to occupy property without any formal declaration of transferring ownership. They could also change the prospective use of the property irreversibly. The practice forced people to start Court proceedings in order to have such occupation of land quashed or in order to receive compensation. Under article 46 ECHR (binding force and execution of judgments) the Court indicated that Turkey should also take general measures in order to make the process of expropriation less unforeseeable and arbitrary and to secure compensation. Turkey should also actively discourage de facto expropriation by measures of deterrence and by holding the people responsible to account. Reforms in this area are thus now called for in Turkey.

The other two cases relate to a post-conflict context. In Saghinadze and others v. Georgia, the Court ruled on the eviction of an internally displaced person (IDP). The applicant, a Georgian who fled the Georgian province of Abkhazia during the armed conflict in the early 1990s, was given the use of a cottage in Georgia's capital Tbilisi by the Ministry of the Interior, by which he was employed. With his family he build up a new life there. Following the 'Rose Revolution' in Georgia in 2003, the applicant led a number of investigations into criminal cases and also submitted information to the authorities on abuse of power within the state apparatus. Apparently, he stepped on someone's toes a bit too hard, since he and his family were evicted from the cottage in 2004 by agents of the special forces. The Court found that both articles 8 (right to respect for the home) and Article 1 of Protocol 1 (protection of posessions) had been violated. The eviction had been unlawful under Georgian law and contrary specifically to the protection given to IDPs. In a particular example of very intense review, the European Court held that the Georgian Supreme Court had contradicted its on case-law in this matter. In para. 16 the Court noted on this that "where such manifestly conflicting rulings stem from the same jurisdiction, and no reasonable explanation is given for the divergence, such rulings smack of arbitrariness." The rule of law thus clearly also applies to the reasoning (or lack thereof) of national judgments themselves. One may note, in passing, that the Court lauds Georgia's inclusion in its laws of protection for IDPs in line with UN standards, but condemns its lack of application in the practice of this case.

Finally, the case of Dokic v. Bosnia and Herzegovina concerns the case of a lecturer at a military school who tried in vain to repossess his flat in Sarajevo which he had left at the start of the Bosnian war. He currently lives in Serbia and has both the Bosnian and Serb nationalities. Serbia intervened as a third party in the case. Interestingly, the Court considered it unnecessary to establish whether Dokic had been forced to flee Sarajevo, but noted that he was neither a refugee nor an IDP. This was irrelevant for the reasoning of the Court however, which in essence did not deal with the case as a war-related property issue (although that was part of the factual context), but rather decided within its general and established case-law on property rights. It held that Dokic was in essence treated differently than others on the basis of his ethnicity (Serb), even if the applicable law seemed neutral. In addition, the reasoning of the state that the housing was needed to accommodate other people in need was not supported by evidence (military flats were allocated to war veterans, but this was done irrespective of their housing situation or income). In addition, the applicant had not received a comparable occupancy right in Serbia as he had held in Bosnia - there was thus no equivalent alternative (as Bosnian law required). Finally, the compensation offered was too low in the view of the Court. Thus it concluded that Article 1 of Protocol 1 (P1-1) had been violated.

The European Court more strictly scrutinised the state's arguments than the former Bosnian Human Rights Commission had done. In deciding on the same case, the Commission in 2006 found no violation of P1-1. See the judgment (in Bosnian) here.

Finally, for those interested in housing rights (like myself) it is notable that the Court held that the case did not disclose an interference with the right to respect for the home (Art. 8 ECHR), since Dokic had shown no intention of returning to his former flat. This is an application of principles established in Demopoulos v. Turkey earlier this year and is an opposite situation (but same application) of older case law which stressed the need for continuing links with the dwelling at issue (e.g. Gillow v. United Kingdom).

See also the informative post(s) on this case here, by experts who have worked on housing restituion in practice in Bosnia.