Court's Summer Break

After issuing its last judgments yesterday, the Court has gone on its summer break. This blog will do the same and will return at the end of September (a bit later than the Court itself).

For some summer reading, please consult (and what could me more fitting as an overarching theme for human rights?):

Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights (EJIL, forthcoming) on SSRN.

And (in some unabashed summer self-promotion, if you allow me), my own: Piercing the Tattered Veil: Housing Restitution in Bosnia as a Case Study of Researching Human Rights with the Help of International Relations Theory (also on SSRN).

Posting will resume at then end of September. Please visit this blog again then to stay informed on the newest ECHR developments. Have a good summer, dear readers!

Recognised at Long Last

In one of its last judgments before the summer break, the Court found violations on several counts in a case lodged by the Austrian Religionsgemeinschaft der Zeugen Jehovas (Austrian Jehovah's Witnesses). The religious community applied for legal recognition as a religious society and asked to be granted legal personality in 1978. The requests were initally refused and only after long proceedings legal personality was granted in 1998 (twenty years after the initial application!). Recognition as a religious society was dismissed, however, and a ten-year qualifying period was imposed.

The applicants complained that their freedom of religion had been violated (Article 9 ECHR), that Austria had discriminated in dismissing their request for recognition (Article 9 in conjunction with Article 14), that the legal proceedings had taken longer than reasonable (Article 6) and that no effective remedy existed (Article 13). The Court found violations on all counts, except the last one. The finding of a violation of Article 6 was unanimous, but on the first two points the Court ruled six votes to one, with the Austrian judge being the dissenting voice (sic!).

Under Article 9 ECHR, the Court found that the period of 20 years of non-recognition after the initial request amounted to an interference. Although it was prescribed by law and pursued a legitimate aim, it was not necessary in a democratic society. The Court emphasized the importance of pluralism and held that the granting of legal status was not a sufficient form of compensation. The Court's assessment of the discrimination complaint focussed on the ten-year qualifying period and the importance of the state's neutrality in applying it. Since the applicants could show that Austria had recognised another, much newer church community, it did apparently not consider the ten-year period to be essential. Thus the difference in treatment (compared to other religious communities) had not been objective or reasonable.

The applicants were awarded 10,000 euros for non-pecuniary damage, but it is clear that executing the spirit of the judgment would entail legal recognition of the Austrian Jehovah's Witnesses as a religious society.

The judgment can be found here and the press release here.

Turkish AK Party Fined But Not Dissolved

Yesterday, the Constitutional Court of Turkey ruled that Prime Minister Recep Tayyip Erdogan's AK Party will not be banned. It was a Phyrric victory for the party, however. A majority of the judges voted to close down the party, but the majority was not large enough. The party will suffer financial consequences, since the Court did vote to diminish state funding for the Party.

As reported earlier on this blog, last week the European Court decided not to issue a preventive interim measure on the case. As now appears, this was indeed wise. Nevertheless, the saga does not stop here, as the legal and political fights over the AK Party's status are bound to continue in Turkey for the months to come.

For the BBC News press release on the Constitutional Court's decision, click here. For reactions from the Council of Europe, see here.

Losing Flux - Freedom of Expression Case

Today the Moldovan newspaper Flux for the first time lost a case before the European Court of Human Rights. The newspaper is famous among Strasbourg watchers. It instituted and won six earlier cases before the Court and each time a violation of Article 10 ECHR (freedom of expression) was found. Today's case is the seventh (somewhat confusingly called "No. 6", since one of the six earlier cases was initiated together with another applicant). In the earlier cases the newspaper had been convicted on the national level for publications which usually dealt with public scandals and misbehavior of public officials. Each time the Court found that the conviction or fine was not necessary in a democratic society and had thereby indirectly boosted the freedom of the press in Moldova. This time, Flux published an article on a school principal who had allegedly misappropriated school funds and had taken bribes. Flux had, however, failed to ask the principal for a reaction nor had it allowed him to publish a reaction. The Court, by a narrow margin of four against three, held that such behaviour by the newsspaper was irresponsible and found no violation of Article 10. I am curious to read the dissenting opinions!

The judgment is available here and here is the press release on all of today's judgments.

Request for Interim Measure on Turkish AK Party - Dismissed

Last Friday, 25 July, the Court received an application by Ali Sezer relating to the possible dissolution of the ruling party in Turkey, the AK Party (Justice and Development Party). The applicant also asked for an interim measure "to prevent the Turkish Constitutional Court from ordering the dissolution of the AKP". The Court, on that same Friday, informed the applicant that it would not adopt an interim measure. In addition, it refused to give the case priority. It seems that the Court, wisely, first awaits what the outcome of the - turbulent - proceedings on the national level will be. The case may certainly return to Strasbourg in the future, if the Turkish Constitutional Court indeed orders the dissolution of the party.

Kononov judgment available

The Kononov judgment I mentioned in last Friday's post is now available on the Court's website (in English and in French). To find it, click here.

World War II Crimes Revisited

It is relatively rare, but sometimes echoes of crimes committed during World War II reach the Strasbourg Court. In such instances the Court is called upon to look into atrocities which themselves gave rise to the drafting of the Convention and the creation of the Court. This week, the Court issued a judgment in such a case, Kononov v. Latvia. It found, with the smallest of margins (four votes against three), a violation of Article 7 ECHR.

Article 7(1) provides that "no one shall be held guilty of any criminal offence which did not constitute a criminal offence under national or international law at the time when it was committed." Kononov was found guilty of having committed war crimes in Latvia in 1944. At that time he led a unit of partisans who killed several villagers in Latvia who had allegedly collaborated with the Nazis. The Latvian authorities started to prosecute Kononov in the late 1990s, which was still possible because war crimes were exempted from any statutory limits. Kononov complained that his actions were, in 1944, not contrary to the law.

In order to solve the case, the Court had to assess whether the applicant's actions contravened international humanitarian law, specifically the appended Regulations to the Hague Convention of 1907. It concluded that the partisans had had legitimate grounds to consider the villagers as collaborators of the German army and that they were indeed armed by the latter. Thus the persons killed could not reasonably be considered as civilians. In addition, domestic law could not serve as a basis for his conviction. Thus the Court found a violation of Article 7 ECHR.

Much more than in the cases concerning the war in Chechnya, the Court had to interpret the specifics of international humanitarian law (IHL) in this case. This obviously led to much discussion, if one considers that one concurring and two dissenting opinions are attached to the judgment. I leave it to experts of IHL to assess whether the Court did a commendable job here.

The case was highly sensitive, since it touched upon the Second World War and especially since the applicant was a former Latvian and was granted Russian citizenship during the criminal proceedings in Latvia. Those familiar with the situation in the Baltic countries, may know that one of the major bones of contention between Latvia and Russia in the last few years is the issue of non-citizenship for the Russian minority in Latvia. In the case of Kononov, Russia intervened as a third party. It may have come as a relief to that state that the Court found in favour of a Russian citizen in a case which was not directed against Russia itself (as opposed to the Chechnyan cases).

Today the judgment itself was not yet available through the Court's search engine HUDOC (a sign that the Court's summer recess is approaching?), but the press release can be found here. In addition, click here for the admissibility decision (in French only).

Judicial Ethics

Article 21 ECHR provides that the Court's judges shall be of high moral character, qualified, impartial and independent. These criteria have been further specified in the Rules of Court. Apparently, this was not sufficient - or at least not sufficiently known to the general public. Thus, the Court drew up a new and very short public document last month: a Resolution on Judicial Ethics (adopted by the Court on 23 June 2008). The document outlines the judges duties and responsibilities in relation to e.g. other functions, conflicts of interests, and favours and advantages. Although the text offers little more than one could reasonably infer from the Convention and Rules of Court, it is a clear and handy overview of a judge's responsibilities. They provide the underlying principles of the criteria contained in the Convention. Hopefully it will serve its purpose.

Separate, But Still Equal

After the Czech Republic and Greece, it was Croatia's turn last week to be faced with a complaint of unequal treatment of Roma in schools. In the case of Orsus and others v. Croatia, the European Court of Human Rights addressed the issue of Roma-only classes in several Croatian elementary schools.

The fourteen applicants were Roma children who had been placed in separate classes and had spent part of or even their entire primary school time in such separate classes. Most of the applicants did participate in extra-curricular activities, in which the groups were mixed. They claimed that the separation amounted to racial discrimination, that the courses in the Roma-only classes had 30% less content and that the separation caused psychological harm. They also pointed to the extremely high rate of Roma drop-outs in primary schools (84% as compared to 9% as a national average). The state contended that the separate classes were meant for pupils who lacked sufficient knowledge of Croatian. In addition, they submitted that in most of the schools concerned less than half of Roma children were placed in separate classes.

The applicants complained that the separation amounted to inhuman and degrading treatment, since it caused them psychological harm. The Court conceded, in an important dictum, that this could in principle be the case (para. 38):

The Court does not in principle exclude that treatment based on prejudice against an ethnic minority may fall within the ambit of Article 3 ECHR. In particular, the feelings of inferiority or humiliation triggered by discriminatory segregation based on race in the field of education could, in the exceptional circumstances of an individual pupil, amount to treatment contrary to the guarantees of Article 3 of the Convention.

In the case at hand, however, the applicants had failed to substantiate that prevalent prejudice against them existed. Thus the Court found no violation of Article 3. A real Echternach procession outcome: two steps forward and one step back. For many future applicants, it will be difficult, although not impossible, to prove such prejudice against them.

The core of the case was the complaint under Article 2 of Protocol No. 1 (right to education) combined with Article 14 (prohibition of discrimination). The Court found no proof that the education in the Roma-only was of a lower standard. In addition, it found that transfers to mixed classes were a regular practice (including some of the applicants' cases). There was no indication that the parents of the other applicants ever asked for a transfer to the mixed classes. The children were thus not prevented from receiving "an adequate and sufficient education". The Court explicitly distinguished the case from the earlier Czech case of D.H. and others. In paragraph 65 it held:

In the Court's view placing a disproportionate percentage of children belonging to a specific ethnic minority in schools for the mentally retarded bears no comparison with placing Roma children in separate classes on the ground that they lack adequate knowledge of the Croatian language.

The Children were kept in the same schools and class transfers were possible. Although there was no clear set of standards and procedures, these shifts were without formalities and based on a teacher assesment of the individual child. Interestingly, the Court did indicate that having such standards and procedures would be "desirable" - which is less strongly formulated than in the Greek education case of June 2008.

Finally (para. 68), the Court concluded that:

The Court finds it satisfying that the authorities invested themselves in addressing that sensitive and important issue, and that the placement of the applicants in separate classes was a positive measure designed to assist them in acquiring knowledge necessary for them to follow the school curriculum. Thus the Court considers that the initial placement of the applicants in separate classes was based on their lack of knowledge of the Croatian language and not their race or ethnic origin, and was justified for the purposes of both Article 14 of the Convention and Article 2 of Protocol No. 1.

The Court's press release of the case can be found here. The European Roma Rights Centre, one of the NGOs representing the applicants, issued a press release of its own, deploring the outcome as a setback for Roma rights.

Hate Speech Case

Restricting hate speech is often a contentious point from the perspective of human rights. Last week, the Court issued a judgment on such speech in the French case of Soulas and others. Soulas was the publisher of a book written by Guillaume Faye entitled 'La colonisation de l'Europe' (the colonisation of Europe; see picture). In the book, Faye argued that Europe was gradually being overtaken by Muslims and that they had already established control over some territories (certain banlieues of Paris for example). The skirmishes in these places with the authorities were indeed, according to the author, the start of a civil war which was a necessary step in the 'reconquista' by Europeans of territories lost to the enemy, Muslims. An ethnic war was thus a necessary solution, Faye argued. Soon after the publication of the book the author, the publisher and the publishing firm were prosecuted. The former two were ordered to pay fines of 7,500 euros each for violating a law which prohibited the incitement of hatred and violence against a specific group.

In Strasbourg, the applicants complained that their conviction by France violated their freedom of expression as protected by Article 10 ECHR. The Court first indicated that the issues addressed in the book - immigration and integration of foreigners - were issues of general importance. It then went on to state that addressing possible problems arising from such immigration was a task for national authorities, which should be given a large margin of appreciation since so much depended on the historical, demographic and cultural context. The Court indicated that the book was written in an accessible style and addressed itself at a large audience. It was polemical and tended to present the effects of immigration as catastrophic. After mentioning that the fight agaisnt racism in all its manifestations is of high importnace, the Court considered that the reasons given by the national courts for the conviction were relevant and sufficient: the book aimed to nurture feelings of rejection against certain communities by calling them the enemies in an ethnic war. The French courts had remained within the permissible margin of appreciation.

Notably, on the penalty, the Court stated that 7,500 euros might seem high in the particular context, but that the applicants could also have been sentenced to imprisonment under the applicable law (sic!). Rather a strange argument. In addition, one may wonder what would have happened if the contents of the book would have been part of an article in the press, which is usually given a high level of protection by the Court, especially when it concerns issues of general importance.

France had also argued that the application was an abuse of rights as prohibited by Article 17 ECHR and an abuse of the right to petition. The Court rarely uses Article 17, and this invocation reminds us of the case law of the former European Commission of Human Rights, which did apply Article 17 to declare several hate speech cases inadmissible. In Soulas and others the Court the court dismissed the argument by stating that the contents of the book are not sufficiently severe to bring Article 17 into play. Although I am personally a proponent of always assessing hate speech cases under Article 10, I do not find the Court's reasoning particularly convincing here. Especially since it did apparently judge the contents of the book to be severe enough to allow the French to take legal action against it.

The outcome of the case may be morally satisfactory, the reasoning used would not win a beauty contest for the best-argued judgment.

Almost amusingly, the applicants also claimed that the French actions were discriminatory, since the authorities did not proscute 'comparable' foreign authors such as Samuel Huntington or V.S. Naipaul! The Court held that these claims had not been sufficiently substantiated.

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

This Thursday a motherload of 44 judgments is coming up. I will try and address the most notable ones from next week Wednesday onwards.