The Perils of an Interview

Being interviewed in a newspaper can have serious consequences. Such was the experience of Nadji Chalabi in whose case the Court recently issued its judgment. Chalabi was a former member of the Board of Directors of the Grand Mosque of the French city of Lyon. In an interview with a local magazine he criticised the director of the Mosque, calling his management dodgy and observed that he lacked knowledge about Islam. The director won a defamation case against Chalabi and Chalabi was ordered to pay damages to him.

The European Court unanimously found a violation of Article 10 in this case. It held that the question of the management of a religious institution was a question of public interest both to the religious community involved and the public at large. This led to a higher level of protection of the expression concerned. Moreover, it labelled the director as a public figure due to his representative and institutional functions. The remarks of Chalabi should be seen as a value judgment which had a sufficient factual basis: an investigation by the authorities was carried out at the relevant time concerning possible misappropriation and fraud. As to the wording of the comments, the Court did not find them clearly insulting. Thus the conviction of Mr Chalabi had been contrary to Article 10.

In my view, the case is notable in three respects. First, it shows that the wheelings and dealings of religious communities concerning their management and funding (as opposed to their religious functions) are considered by the Court of public interest. Thus, it cannot be claimed that such matters are only of internal concern to the community concerned. This means that public debate on such issues receives a higher level of protection under the Convention than would otherwise be the case. Secondly, a public investigation or ongoing judicial proceedings against a person may serve as a sufficient factual basis for non-excessive value jugdments about that person, nothwithstanding the presumption of innocence. Thirdly, leaders of religious communities who publicly represent their constituencies are considered to be public figures under the Convention who should be able to cope with more criticism than the average person. The Court has already often stressed that point in respect of e.g. politicians, but now explicitly broadens the notion to religious leaders who operate in public.

Although the judgment is available only in French, a press release on the case can be found here. For the involved magazine's (Lyon Mag) own reporting on the case, click here.

10,000th Court Judgment

This month the European Court of Human Rights reached a remarkable milestone. On 18 September it delivered its 10,000th judgment, both a testimony to the Court's very high efficiency as well as a sad reminder of the enormous case load - and the underlying human rights problems. Far gone are the days when ECHR presidents claimed that the Court had a busy year when it issued more than five judgments. Ever since its first judgment (Lawless v. Ireland) in 1961 the Court's output has been increasing, especially since it became a full time Court in 1998. Out of the 10,000 judgments, 4,000 alone were delivered in the last three years! No wonder that president Jean-Paul Costya emphasized in a statement at the occasion of the milestone that the real solution is to be found in an increased national protection of human rights.

Pending reforms (under the new Protocol 14 and in other ways) the future looks rather grim in this respect. At this moment the amount of currently pending applications is ten times higher than the total of all ECHR judgments and is nearing the sad 100,000 benchmark. Perhaps symbolically, the 10,000th case (Takhayeva and others v. Russia) was another Chechnyan disappearance case, no doubt not the last one...

With this post this blog is resuming after its summer break. More posts on recent ECHR judgments will follow later this week.

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.