In the past two weeks, with the United Kingdom's referendum on a potential Brexit approaching, the UK's Government has been speaking with an increasingly incoherent number of voices. Home Secretary Theresa May favours the UK remaining in the European Union but leaving the European Convention of Human Rights (see her speech in this report here), whereas Justice Secretary wants the UK to leave the EU, but remain in the ECHR, while ignoring the rulings of the Court. Some people have already described the Government's position as totally incoherent. In the fine British tradition of humour of Monty Python, a group of actors (Patrick Stewart, Adrian Scarborough and Sarah Solemani) have tackled the issue head-on in a marvellous short sketch called "What has the ECHR ever done for us?", now to be seen on the website of The Guardian. Well worth watching!
Monday, 2 May 2016
Friday, 29 April 2016
The voting rights of prisoners under the European Convention on Human Rights continue to be the object of debate in some countries - whereas in others it is not an issue at all, one may add. In this context, much attention usually goes to the United Kingdom's situation, but it is interesting to see that very recently a Russian Constitutional Court judgment also related to the issue. It deserves attention from an international audience. I am therefore hereby presenting a critical and vocal guest post by three academics on this recent Russian judgment:
Imaginary Dialogue and Fictitious Collaboration: Russian Response to the Prisoner Voting Judgment
written by: Kanstantsin Dzehtsiarou (University of Liverpool, UK), Sergey Golubok (Double Bridge Law, Russia) and Maxim Timofeev (European Humanities University, Belarus/Lithuania)
Since 2005, the European Court of Human Rights (ECtHR or the Court) has been facing a major challenge: its prisoner voting case-law is met with hostile criticism, at least in some Contracting Parties to the European Convention on Human Rights. In this confrontation with the European Court, the UK stands together with countries like Russia and Turkey. On 19 April 2016, the Russian Constitutional Court (RCC) has added yet another page to this growing saga. In this blogpost, we will first briefly describe the Court’s case-law on prisoner voting rights and focus on the Russian response to it. Secondly, we will analyse what the most recent decision of the Russian Constitutional Court actually says and what it means. Finally, we will analyse the judgment of the RCC from the perspective of international law and how it might impact the authority of the Strasbourg system of human rights protection.
A brief history of the prisoner voting case-law
The prisoner voting saga began in 2005 when the Grand Chamber of the Court delivered its judgment in the case of Hirst v UK (No 2). In that case, the Court ruled that blanket indiscriminate and automatic disenfranchisement of convicted prisoners violated Article 3 of Protocol 1. This judgment happened to be problematic. First, it deals with a very unpopular group of people – convicted criminals. Secondly, to execute this judgment Parliament needed to change national law. This meant that the members of Parliament could use this opportunity to boost their popularity through vocal and persistent opposition to the lifting of the prisoner voting ban. And, finally, the respondent state in this case was the UK which is known for its rather suspicious attitude to the ECtHR. Execution of this judgment is indeed challenging, despite the Court’s constant reminders that it needs to be executed. For instance, in 2010 the Court delivered a pilot judgment in the case of Greens and M.T. v UK in which it gave the UK six months to introduce legislative proposals designed to secure compatibility with the Convention. In 2011, the UK House of Commons has overwhelmingly voted against amending the law in this area. When this blogpost was written (April 2016) Hirst No 2 had not been executed yet.
While the Court clearly stated that an automatic and general ban on prisoner voting is not compatible with the Convention, it did not explain which system would comply. In the following decade the Court tried to fine tune its standards in this area. In the case of Frodl v Austria the Court ruled that the decision of disenfranchisement should be made by a national judge in each individual case and only if the offence can justify this disenfranchisement. By doing so, the Court narrowed down the margin of appreciation of the Contracting Parties but this narrow standard did not last long. In the Grand Chamber judgment in Scoppola v Italy (No 3), the Court reconsidered Frodl and concluded that the Italian system that limited disenfranchisement to those who are sentenced to 3 years or more is compatible with the Convention even though national judges do not consider this question in the sentencing stage. The Court thereby departed from its stricter regime of individualised disenfranchisement. These were the optimistic days of the prisoner voting saga: Austria has executed Frodl without major issues and there was no violation in Scoppola No 3, so, Italy did not need to amend its laws at all. Having said that, the scope of what is required from the Contracting Parties has been reviewed again in the recent case of Söyler v Turkey. In Turkey, the prisoner voting ban is not absolute – those who committed involuntary crimes can vote. The ECtHR has nevertheless found a violation because the voting ban imposed on those who committed intentional crimes is tougher than the one in the UK or Italy. For example, those prisoners who are conditionally released still cannot vote until their main sentence is over. The judgment in Söyler is not executed yet.
In 2013, the Court delivered a judgment in the case of Anchugov and Gladkov v Russia and this judgment has a potential to be one of the most challenging judgments in the Court’s history. The provision on disenfranchisement of prisoners is enshrined in the Constitution of Russia, in its entrenched part which can only be amended by adoption of a new Constitution. The Russian authorities have argued that the constitutional nature of this ban makes the case in Russia different to Hirst No 2 but the Court rejected this argument and found a violation of Article 3 of Protocol 1.
Prisoner voting saga: Russia strikes back
In Anchugov and Gladkov, the ECtHR invited the RCC to interpret the Russian Constitution in such way that it would comply with the Convention (para. 111). The RCC did not do that: the response of the Russian authorities to this judgment of the ECtHR came in three steps. The first step was the judgment of 14 July 2015 in which the RCC claimed that in exceptional situations the national authorities can depart from their international obligations when the compliance would lead to breaches of the principles of the Russian Constitution. The second step were the amendments to the Law on the RCC which were passed by the Russian Parliament on 14 December 2015. They provided the RCC with the powers to declare execution of an international obligation impossible if it contradicts the Constitution. It should not come as a surprise that the first request to consider whether the execution of an ECtHR judgment is compatible with the Russian Constitution came in relation to Anchugov and Gladkov v Russia.
In its judgment of 19 April 2016, the RCC started out by reiterating the main gist of its earlier judgment of 14 July 2015: although the Convention (as well as the judgments of the ECtHR) is part of the Russian legal system, the Constitution has supremacy in the national legal order. Thus, according to the RCC, the case at hand cannot be decided by virtue of “subordination”, it may only be solved through a “dialogue”. The latter, however, should be based on “the ECtHR’s respect towards national constitutional identity”. The RCC decided that the “constructive dialogue” was possible only under the condition that the last word should always belong to it, not to the ECtHR which will thus be deprived of its role of a guardian of the Convention.
As it has been stated above, the ECtHR invited the RCC to re-interpret the Russian prisoner voting ban and squeeze it within the parameters of European case-law. Instead, the latter Court has characterised the ban as “imperative” and concluded that it cannot be construed as allowing the federal legislature to lift the ban, even partially. The RCC relied heavily on the textual interpretation of the Constitution and for the first time in its history, deployed the travaux préparatoires of the Constitution. These arguments lead to a deadlock between the prisoner voting case-law of the ECtHR and the case law of the RCC.
The RCC questioned the Court’s methods of interpretation, specifically the evolutive interpretation of the Convention when the ECtHR interprets the Convention “in light of the present-day conditions”. The RCC stressed that Russia “has the right to insist” on the original meaning of Article 3 of Protocol 1. This claim is problematic as it makes little sense to interpret the Convention solely on the basis of its “accepted” meaning when Russia acceded to the Convention (in 1998 mid-way through its history). Both technological and social changes have to be reflected in the case law of the ECtHR. Otherwise, the ECtHR would turn into an instrument of human rights mummification and become ineffective.
After stating that evolutive interpretation should not be applicable in this context, the RCC nevertheless assessed the quality of the reasoning of the ECtHR. The RCC stated that the lack of European consensus on the issue of the prisoner enfranchisement deprives the ECtHR’s judgments on this matter of a sound foundation. The RCC has twisted the facts here: instead of counting only those countries which have banned prisoners to vote, it counted all states in Europe which have some limits on prisoner voting. Although, the ECtHR has never claimed that all limitations should be lifted in this area. As a result of this convenient counting the RCC concluded that there was no consensus on the issue of prisoner voting.
These arguments were supposed to substantiate the first paragraph of the operative part of the judgment of 19 April 2016 which declared that the ECtHR judgment is unenforceable because compliance with the general measures stemming from Anchugov and Gladkov would require enfranchising of some prisoners and this goes against the meaning of the Russian Constitution.
This judgment, however, has a second paragraph in its operative part which states that Anchugov and Gladkov is actually enforceable without any constitutional or legislative amendments. According to the RCC the Russian prisoner voting ban is not general, automatic and indiscriminate.
It is hard to explain how these two paragraphs of the operative part can be reconciled in one judgment; moreover, the ECtHR has clearly stated that the constitutional ban in Russia is blanket and automatic. The RCC has offered the following reasons to substantiate this point.
First, the RCC stressed that there are criminal penalties like arrest or compulsory labour that have elements of deprivation of liberty. According to the RCC these modes of punishment might fall within the scope of deprivation of liberty under the ECHR and not under the Russian Constitution. Secondly, the RCC basically reiterated the argument of the Russian Government in Anchugov and Gladkov (para. 91) highlighting that the ban on the right to vote affects only those who were convicted of criminal offences “sufficiently serious to warrant an immediate custodial sentence” and that domestic courts exercise a thorough examination of all the relevant circumstances concerning the seriousness of the crime and defendant’s personality. The UK authorities used the very same argument in Hirst No 2 (para. 77) and the Court has also rejected it. In effect, the RCC held that the ECtHR had erred in Anchugov and Gladkov in its assessment of Russian law on prisoner enfranchisement as general and indiscriminate.
Finally, the RCC advised the Russian parliament to reclassify some custodial regimes such as “settlement colonies”. In these colonies the liberty of inmates is restricted but to a lesser degree than in prisons. Those who committed involuntary crimes and less dangerous intentional crimes can serve their punishment there. Reclassification would mean that the inmates in settlement colonies will cease to be prisoners. This little trick would exempt them from the reach of the constitutional ban.
Even if the Russian parliament follows the obiter dictum advice of the Constitutional Court and amends the legislation enfranchising some convicts held in “settlement colonies” it might not be enough to implement Anchugov and Gladkov as it would not reach the standard set by the ECtHR. Having said that, it is naive to expect that this will ever happen given that this wish vaguely expressed by the RCC is not binding upon the Russian legislator. It was not even the issue before the RCC. In fact, the question before the RCC was whether to render the judgment of the ECtHR effectively unenforceable. The RCC succeeded in doing just that.
To sum up, the key aspect of the judgment of 19 April 2016 is that Anchugov and Gladkov cannot be implemented because the ECtHR’s interpretation of the Article 3 of Protocol 1 is in a direct contradiction with the explicit constitutional ban. At the same time, the RCC has suggested that Anchugov and Gladkov, as construed by the RCC, can be executed without any legislative amendments, since there is no absolute voting ban in Russia. Having said that, one does not get a sweeter taste in one’s mouth no matter how many times one says “halvah”. One should not be misled by expressions like “constructive and mutually respectful dialogue” or “compromise”, as well as the RCC’s assurances as to its genuine search for possible solutions. The truth behind this word play is plain: no dialogue, no trade-offs, and no respect to international obligations.
Prisoner voting in Russia: wider repercussions
From the standpoint of international law, the issue is relatively straightforward. Under Article 27 of the Vienna Convention on the Law of Treaties, a state may not invoke the provisions of its internal law as a justification for its failure to comply with a treaty. This provision is of course fully applicable in relation to the ECHR. The judgment of the ECtHR in Anchugov and Gladkov v Russia remains valid internationally but it cannot now be enforced domestically. We argue that this will have the following consequences.
The first consequence is the denial of justice to the applicants who were successful in Strasbourg. They are left with the judgment of the ECtHR in their favour which is unenforceable. We know from the jurisprudence of the Strasbourg Court itself that the right to have the judgment in one’s favour enforced forms a part of the right to have an effective access to justice. The right to individual application enshrined in Article 35 of the ECHR is rendered illusory if domestic courts can effectively undermine the legal effect of the judgment of the ECtHR.
Another consequence is more drastic and far-reaching. It is about the integrity and legitimacy of the Strasbourg system. The RCC permitted itself to slap the European judges on the wrist. This gesture is strongly symbolic; the RCC went further than any other court in Europe in criticising the judgments of the ECtHR. If no strong reaction follows on the part of the Convention institutions, such as the Court and the Committee of Ministers, the Russian stance might become contagious – not only in future cases of the same sort that might come before the RCC but also in other jurisdictions. For example, the UK Home Secretary Theresa May has recently accused the ECHR of doing nothing to force states like Russia to effectively protect human rights. This statement is hypocritical as persistent refusal of the UK to execute Hirst No 2 has undermined the authority of the ECtHR in this area. From the political perspective the judgment of the RCC is similar to the UK position on this matter. The constant questioning of the Court’s judgments undermines its authority. Erosion of the legitimacy of the ECtHR may become unstoppable. This process takes time, but it is hard to reverse and its ultimate result can be damning: rendering the Council of Europe obsolete.
Friday, 22 April 2016
The University of Liverpool, in cooperation with the Council of Europe and the PluriCourts project, is organising a two day workshop on one of the most contested ECHR-related issues in the UK: 'Challenges to Implementing the Judgments of the European Court of Human Rights: Dialogues on Prisoner Voting Rights'. The conference will take place in London on 19 and 20 May 2016. This is the organisers' conference summary:
"The effectiveness of the European Court of Human Rights (ECtHR) is dependent on how readily its judgments are executed by the Contracting Parties. This workshop will look at one of the most controversial confrontations between the ECtHR and the Contracting Parties in its history: the prisoner voting saga. In 2005, the ECtHR ruled that a British blanket ban on prisoner enfranchisement violates Article 3 of Protocol 1 to the Convention. To date, this judgment has not been executed and this forced the ECtHR to deliver a pilot judgment confirming Hirst (No. 2). This subsequent judgment in the case of Greens and MT v. the United Kingdom created a further barrage of public outcry in the UK and has also not yet been executed. In a more recent case of Anchugov and Gladkov v. Russia a similar blanket constitutional ban in Russia was found incompatible with the Convention; it too was not implemented by the respondent party. Simultaneously, states like Austria, Ireland, Latvia and Liechtenstein in contrast to Russia and the United Kingdom, passed laws to enfranchise their prisoners with minimal controversy or fanfare. This project aims to assess why the issue of prisoner enfranchisement is so controversial in some States while it passes unnoticed in others.
This workshop aims to explore acceptable ways of implementing of prisoner voting judgments in the United Kingdom. The presentations at the workshop will explore the possibility of facilitating national sovereign decision-making and national traditions within the Strasbourg supervisory mechanism. The participants will focus their addresses on the roots of the issue and the possible solutions to the prisoner voting crisis."
Tuesday, 19 April 2016
The School of Law at the University of Portsmouth, the European University Institute (EUI) and the School of Law and Social Justice, University of Liverpool are co-organising a conference on the European consensus (EuC) method of interpretation of the European Court of Human Rights. The conference, entitled "Building Consensus on European Consensus", will take place at the European University Institute in Florence on 1 and 2 June 2016. The keynote speech will be delivered by professor Conor Gearty of the London school of Economics. In the organisers' words, "the purpose of this 2-day conference is to bring together academics and members of the European judiciary in order to study the function of EuC, identify its impact on European human rights law and beyond, and assess its merits and shortcomings as a catalyst for the development of 'new' rights."
For more information and to register, click here.
Monday, 18 April 2016
In an effort to increase the understanding of how the application system in Strasbourg works, the Court is constantly increasing the number of information tools. Of course, there is the 'Practical Guide on Admissibility Criteria', an online text with comprehensive information. To complement this, the Court has also been launching short online videos in a number of languages. A rather general video on the issue has been online for some time ('ECHR video on admissibility conditions'). However, more recently the Court has added a more elaborate video in its new series “COURTalks-disCOURs”. The first video in a series produced together with the Council of Europe’s programme “Human Rights Education for Legal Professionals” (HELP) is entitled 'Admissibility of an Application'. This is the Court's press release on the video:
"This fifteen-minute video is geared to providing judges, lawyers and other legal professionals, as well as civil society representatives, with an overview of the admissibility criteria which all applications must meet in order to be examined by the Court.
By providing HELP, national judicial institutes and Bar associations with a tool for initial training, this video will complement the information materials which have already been developed by the Court, including the Practical Guide on Admissibility Criteria and the video clip on admissibility criteria.
The video is subtitled in 14 different languages (English, French, Albanian, Armenian, Croatian, Czech, German, Italian, Lithuanian, Romanian, Russian, Spanish, Turkish and Ukrainian) and forms part of the Court’s translations programme “Bringing the Convention closer to home” which is aimed at improving the understanding and application of Convention standards in the 47 Member States.
The various language versions of the video have been made available on the Court’s YouTube channel as well as on the Court and HELP websites, together with the manuscript and a list of relevant case-law precedents."
Monday, 11 April 2016
Please find below a number of new readings on the European Convention of Human Rights, the Court, and its case-law:
* B.M. Oomen, 'A serious case of Strasbourg-bashing? An evaluation of the debates on the legitimacy of the European Court of Human Rights in the Netherlands', International Journal of Human Rights (Vol. 20, no. 3, 2016) .
The newest issue of our own Netherlands Quarterly of Human Rights, vol. 34, no. (2016), includes:
* S. Langlaude Doné, 'Religious Organisations, Internal Autonomy and Other Religious Rights before the European Court of Human Rights and the OSCE'.
* R.L. Glas, 'The Functioning of the Pilot-Judgment Procedure of the European Court of Human Rights in Practice'.
Marko Milanovic has posted on SSRN an a chapter of a foryhcoming book: 'Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court', to be published in The ECHR and General International Law, Anne van Aaken & Iulia Motoc eds., forthcoming. This is the abstract:
This paper examines the overarching trends in the jurisprudence of the European Court of Human Rights on questions of state jurisdiction in the sense of Article 1 of the European Convention on Human Rights and state responsibility, after its seminal judgment in the Al-Skeini case. While the chapter makes no claim to comprehensiveness of coverage, it first discusses the threshold question of the extraterritorial applicability of human rights treaties, and analyses the relationship between the notions of jurisdiction and responsibility, specifically looking at the recent Jaloud v. Netherlands case. It then examines the issue of the relationship between human rights and international humanitarian law and the European Court’s judgment in Hassan v. UK. This chapter’s main thesis is that the Court is growing increasingly comfortable with applying the Convention extraterritorially and in armed conflict, as well as in directly invoking rules of international humanitarian law. However, a number of important caveats and uncertainties remain in the Court’s jurisprudence, which will inevitably be at issue in important cases currently pending or soon to be pending before it, e.g. the many interstate and individual applications dealing with the conflict in Ukraine.
Thursday, 7 April 2016
At the end of last month, the Grand Chamber of the Court issued its judgment in the case of Bédat v. Switzerland on journalism and investigative secrecy in criminal cases. One of our regular guest bloggers, professor Dirk Voorhoof of Ghent University, has written a critical review of the judgment. Please see his comments in the guest post below:
The Grand Chamber strikes again: Bédat v. Switzerland
Criminal conviction of journalist for having published documents covered by investigative secrecy in a criminal case is no violation of Article 10 ECHR
It has become common knowledge amongst “Strasbourg observers” that the Grand Chamber of the European Court of Human Rights doesn’t have the best reputation in terms of guaranteeing the right of freedom of expression and information. In earlier cases such as in Perna v. Italy, Pedersen & Baadsgaard v. Denmark, Lindon, Otchakovsky-Laurens & July v. France, Stoll v. Switzerland, Palomo Sánchez v. Spain, Animal Defenders International v. United Kingdom, Mouvement Raeliën Suisse v. Switzerland and more recently in Delfi AS v. Estonia and Pentikäinen v. Finland the Grand Chamber’s findings of a non-violation of Article 10 were highly controversial.
On 29 March 2016 the Grand Chamber added a new judgment to this list in the case of Bédat v. Switzerland. In its earlier decision of 1 July 2014 the Chamber of the Court had found a violation of Article 10 of the Convention in the case originally designated as A.B. v. Switzerland (the applicant journalist in this case, Arnaud Bédat, agreed to the disclosure of his name in the Grand Chamber judgment). The Chamber considered the criminal sanction of Bédat, who had published confidential information about a criminal case, not necessary in a democratic society. The Grand Chamber, with fifteen votes to two, has overruled this finding. The Grand Chamber is of the opinion that the Swiss authorities stayed within their margin of appreciation and that recourse to criminal proceedings and the penalty imposed on the journalist did not amount to a disproportionate interference in the exercise of his right to freedom of expression.
The facts and the criminal conviction of Bédat in Switzerland
The article published by Bédat in the weekly magazine L’Illustré concerned the criminal proceedings against M.B. for having rammed his car into pedestrians. The incident, in which three people had died and eight others had been injured, had caused much emotion and controversy in Switzerland. The article contained a personal description of M.B., a summary of the questions put by the police officers and the investigating judge and M.B.’s replies. It also contained the information that M.B. had been charged with premeditated murder and, in the alternative, with murder and it was mentioned that M.B. appeared to show no remorse.
The article was accompanied by several photographs of letters which M.B. had sent to the investigating judge. More than half a year later criminal proceedings were brought against the journalist on the initiative of the public prosecutor for having published secret documents, in breach of Article 293 of the Swiss Criminal Code. It emerged from the investigation that one of the parties claiming damages in the proceedings against M.B. had photocopied the case file and lost one of the copies in a shopping centre.
An unknown person had then brought the copy to the offices of the magazine which had published the impugned article. Bédat was found guilty of making public a series of documents which were to be considered part of the secret of the criminal investigation at that stage and he was ordered to pay a fine for an amount of 2.667 euros. Bédat lodged a complaint before the Strasbourg Court arguing that this conviction had resulted in a violation of his right to freedom of expression.
The judgment of the Second Section: violation of Article 10
On 1 July 2014, the Second Section of the Court found that the article reported on an important case. Although the interference was prescribed by law and pursued legitimate aims, it considered that the sanction did not respond to a pressing social need, not being sufficiently motivated and being disproportionate. The Court was far from unanimous, as the finding of a violation of Article 10 was only supported by four judges. While admitting the importance of maintaining the principle of the secrecy of criminal investigations, the majority was of the opinion that there was no evidence at all that the publication of the confidential information at issue had affected the rights of the person concerned, neither in terms of his presumption of innocence, nor in terms of his right to a fair trial.
Because of the risk of a chilling effect for journalists reporting on important crime and court cases and the relatively severe character of the sanction, the majority of the Court found that the criminal fine imposed on the journalist breached Article 10 of the ECHR. The three dissenting judges argued that the content of the information published by the journalist did not contribute to a debate on a matter of public interest and they emphasized the importance of the secrecy of criminal investigations, guaranteeing the rights of privacy of the accused, the presumption of innocence and the right to a fair trial. Referring to Stoll v. Switzerland, they argued that the Swiss authorities stayed within their margin of appreciation in applying Article 293 of the Swiss Criminal Code that penalizes “anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law”. The conclusion of the Court however was, with four votes to three, that there had been a violation of Article 10 ECHR.
The judgment of the Grand Chamber: no violation of Article 10
While the Grand Chamber agrees with the Chamber that the interference was prescribed by law and pursued legitimate aims, namely preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”, the majority of the Grand Chamber comes to another conclusion with regard to the question of whether the fine imposed on the journalist was necessary in a democratic society. Most importantly, the Grand Chamber emphasizes everyone’s right to a fair hearing as secured under Article 6 § 1 of the Convention, which, in criminal matters, includes the right to an impartial tribunal and the right to the presumption of innocence:
“This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice.” (§ 51)
In general terms the Grand Chamber reiterates that the protection afforded by Article 10 of the Convention to journalists
“is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means (...); the concept of responsible journalism also embraces the lawfulness of the conduct of a journalist, and the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly” (§ 50).
The Grand Chamber clarifies that it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention and that in such a situation the Court must weigh up the competing interests. Reference is made to cases where the right of privacy (Article 8) and the right to freedom of expression (Article 10) are conflicting and the Court considers that an analogous reasoning must be applied in weighing up the rights secured under Article 10 and Article 6 § 1 respectively. In such a format of balancing rights it is the Court’s approach that where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court’s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts.
Next, the Grand Chamber takes into consideration the following six criteria as part of its balancing test:
(i) How the applicant came into possession of the information at issue
(i) How the applicant came into possession of the information at issue
Although Bédat had not obtained the information by unlawful means, as a professional journalist he must have been aware of the confidential nature of the information which he was planning to publish. It was not under dispute that the publication of the information in question fell within the scope of Article 293 of the Swiss Criminal Code (§ 57).
(ii) Content of the impugned article
Although the Grand Chamber reiterates that it is not for the judicial authorities to substitute their own views for those of the press as to what reporting technique should be adopted by journalists and that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation, it qualifies the litigious article about M.B. as “a highly negative picture of him, adopting an almost mocking tone” (§ 60). The article of Bédat had “a sensationalist tone” and it formulated a series of questions “which the judicial authorities were called upon to answer, at both the investigation and the trial stages” (§ 61).
(iii) Contribution of the impugned article to a public-interest debate
According to the Grand Chamber the journalist failed to demonstrate “how the fact of publishing records of interviews, statements by the accused’s wife and doctor and letters sent by the accused to the investigating judge concerning banal aspects of his everyday life in detention could have contributed to any public debate on the ongoing investigation” (§ 66).
(iv) Influence of the impugned article on the criminal proceedings
The judgment repeats the importance of the secrecy of investigations,“geared to protecting, on the one hand, the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed and, on the other, the interests of the accused, notably from the angle of presumption of innocence, and more generally, his or her personal relations and interests. Such secrecy is also justified by the need to protect the opinion-forming and decision-making processes within the judiciary” (§ 68).
According to the Grand Chamber it is “undeniable that the publication of an article slanted in that way at a time when the investigation was still ongoing entailed an inherent risk of influencing the course of proceedings in one way or another, whether in relation to the work of the investigating judge, the decisions of the accused’s representatives, the positions of the parties claiming damages, or the objectivity of the trial court, irrespective of its composition” (§ 69).
Most importantly, the Grand Chamber is of the opinion that “(..) a government cannot be expected to provide ex post facto proof that this type of publication actually influenced the conduct of a given set of proceedings. The risk of influencing proceedings justifies per se the adoption by the domestic authorities of deterrent measures such as prohibition of the disclosure of secret information” (§ 70).
It agrees with the findings by the Swiss Courts that the records of interviews and the accused’s correspondence had been“discussed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court” (§ 71).
(v) Infringement of the accused’s private life
The Grand Chamber reiterates that in order to fulfil its positive obligation to safeguard one person’s rights under Article 8, such as the right of reputation, the State may have to restrict to some extent the rights secured under Article 10 for another person. Therefore, it considers that the criminal proceedings brought against Bédat were in conformity with the positive obligation incumbent on Switzerland under Article 8 of the Convention to protect the accused person’s private life.
The Court also notes that when the impugned article was published, the accused was in prison, and therefore in a situation of vulnerability. Moreover, there is nothing in the case file to suggest that he was informed of the publication of the article and of the nature of the information which it provided. In addition, he was probably suffering from mental disorders, thus increasing his vulnerability:
“In those circumstances, the cantonal authorities cannot be blamed for considering that in order to fulfil their positive obligation to protect M.B.’s right to respect for his private life, they could not simply wait for M.B. himself to take the initiative in bringing civil proceedings against the applicant, and for consequently opting for an active approach, even one involving prosecution” (§ 78).
(vi) Proportionality of the penalty imposed
The Grand Chamber recalls that “it is true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings”, but:
“Nevertheless, in the present case, the Court considers that the recourse to criminal proceedings and the penalty imposed on the applicant did not amount to disproportionate interference in the exercise of his right to freedom of expression” (§ 81).
The Court refers to the fact that Bédat was originally given a suspended sentence of one month’s imprisonment, but that this sentence was subsequently commuted to a fine of CHF 4,000, a sum that finally has been advanced by his employer. Furthermore, the penalty was imposed for breaching the secrecy of a criminal investigation, and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life. Therefore, it cannot be maintained that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by the applicant or any other journalist wishing to inform the public about ongoing criminal proceedings.
Accordingly, the Court sees no strong reason to substitute its own view for that of the domestic courts and having regard to the margin of appreciation available to States and to the fact that the exercise of balancing the various competing interests was properly conducted by the Swiss Federal Court, the Grand Chamber concludes that there has been no violation of Article 10 of the Convention.
Two judges strongly dissent (López Guerra and Yudkivska), the latter expressing the view that
“This Court had always regarded the press as the servant of an effective judicial system, granting little scope for restrictions on freedom of expression in such matters as the public interest in the proper administration of justice. In my view, the present judgment constitutes a regrettable departure from this long-established position”.
The Grand Chamber’s judgment again illustrates that journalists are not above the law, and that a breach of the law in obtaining certain documents or making them public only in very specific circumstances can be fully protected by Article 10 of the Convention (see e.g. Fressoz & Roire v. France, Radio Twist v. Slovakia and Dupuis v. France). In this case the Court again refers to the concept of “responsible journalism”, including the expectation that a journalist in his or her actions of newsgathering shall not breach the law by making information public in cases where somebody else has breached his or her obligation of secrecy and the journalist has obtained the information in a lawful way.
It is somewhat bizarre that the Grand Chamber considers it as a breach of responsible journalism to publish information with a confidential nature. As any experienced journalist will tell you: almost any information is likely to be confidential. And how can the Court reconcile this approach with the high level of protection of journalistic sources and the protection of whistleblowers? Are journalists from now on acting irresponsible by publishing the information obtained from leaking sources or whistleblowers, and can this be an additional, if not decisive argument, to consider the journalists criminally liable for not respecting the secrecy or confidentiality of that information?
In fact, the Grand Chamber opts for a kind of circular reasoning. Indeed the starting point is that the journalist is prosecuted for committing a criminal offence acting as a journalist, while the journalist’s defence is that this criminal offence is justifiable in order to purvey his task as public-watchdog in society. Adding the condition that a journalist must act responsibly and by requiring that he shall not breach the law, the scope of the public interest defence of journalists risks to be substantially narrowed down, if not annihilated.
The use of the concept of “responsible journalism” is also criticized in more general terms in a dissenting opinion in another recent case in which the Court relied on this notion in finding no violation of Article 10. In his dissenting opinion in Rusu v. Romania (8 March 2016) the president of the Fourth Section, judge András Sajó, stated:
“To our regret we observe time and again that the concept of responsible journalism (..) results in undermining freedom of the press. And this case is no exception! While there are responsibilities attached to all professional activities, when it comes to the press, the reference to responsible journalism is disturbing (...)”.
Secondly, it is remarkable that the Court is not as much considering the pressing social need of the interference at issue, but is rather requesting from the journalist to give evidence that the content of the article has effectively contributed to a public debate. While emphasizing that the journalist in this case “failed to demonstrate” that the article contributed to a debate on a matter of public interest, the Grand Chamber is of the opinion that the authorities do not need to demonstrate that the interference in the journalist’s freedom of expression was effectively necessary.
For the Grand Chamber it is enough that the article might “in one or another way” influence the investigation, the position of the victims or the objectivity of the trial court, without further specifying were precisely the impact or prejudice is or was to be situated. For the Grand Chamber such influences are an “inherent risk” of making information public that is part of the secret of criminal investigation. And while in other judgments the Court took into consideration whether or not the criminal court was composed of professional judges, in order to evaluate the impact of media coverage on the fair trial principle and presumption of innocence, now the Grand Chamber emphasizes the risk of influencing the trial court “irrespective of its composition”.
The Grand Chamber chooses rather to refer to the “sensationalist tone” of the article and it is somewhat strange that the Court found it problematic that Bédat had formulated a series of questions around the criminal case at issue “which the judicial authorities were called upon to answer, at both the investigation and the trial stages”, as if these kind of questions were not relevant from a journalistic point of view as well. The consideration by the Grand Chamber that Bédat failed to demonstrate that the article contributed to a debate of public interest is furthermore contrary to the Court’s approach in other cases, in which it stated “that all that matters is whether a report was capable of contributing to debate on a matter of public interest, and not whether it fully achieved that objective” (Haldimann v. Switzerland).
Of course, the Grand Chamber develops a strong argument, which is the vulnerable situation of the accused person, being held in pre-trial detention and hence not being in a favorable position to initiate a private prosecution or a civil lawsuit against the journalist. This circumstance however cannot justify the action taken by the public prosecutor and cannot legitimize the conviction of the journalist, as this would suggest that that there were no other or better actions that could have been taken by the authorities in order to safeguard the guarantees of M.B.’s right to a fair trial. One of the dissenting judges gives a few examples of alternative ways of positive action by the Swiss authorities, such as:
“changing the trial venue, giving unequivocal instructions to jurors, sequestering the jurors, limiting extrajudicial statements by any lawyer, party, witness, or court official, etc. However expensive and time-consuming these measures might be, they would achieve the aim of ensuring fair trial guarantees and to protect the jury from outside influence, without excessive interference in press freedom”.
Finally, it is remarkable that the Grand Chamber expands its approach of balancing the competing interests of privacy protection (Art. 8) and freedom of expression (Art. 10) to the situation of conflicting interest between fair trial (Art. 6) and freedom of expression. The Court indeed considers that analogous reasoning must apply in weighing up the rights secured under Article 10 and Article 6 § 1 respectively (§ 52-53).
While there is no doubt that Article 8 has a horizontal effect and that the state has a positive obligation in order to secure that other private persons do not interfere with the privacy of fellow citizens or data subjects, Article 6 § 1 and the fair trial principle is of another nature. Article 6 § 1 of the Convention contains indeed a direct obligation for the state authorities themselves to secure fair trial principles, including the presumption of innocence before independent and impartial judges and courts.
Broadening the scope and enforcement of the presumption of innocence to be respected by private actors in society is a problematic extension of Article 6 § 1 of the Convention, and it further weakens the right of freedom of expression being situated in the frame of conflicting rights, with consequently a wider margin of appreciation for the State authorities to interfere, even by way of criminal prosecution and conviction of journalists. Requiring media reporting about crime and court cases, including major crime and eventually acts of terrorism, to uphold the presumption of innocence as it is required from the judiciary, is a big step to take.
Actually it is a too big step and it contrasts with the Court’s viewpoint that “it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them”.
Furthermore, imposing on media and journalism the same or a similar obligation to uphold the presumption of innocence as it applies to the judiciary is not only a mission impossible, it also confuses the different roles and functions of the media and the judiciary. It is up to the authorities to guarantee within the administration of justice the highest level possible of securing the impartiality and independence of judges and to have the presumption of innocence respected by them.
The duties and responsibilities of media and journalists should not be derived from Article 6 § 1 of the Convention, but should be evaluated from the scope of Article 10 § 2 of the Convention. From that perspective indeed it is and it should remain “true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings” and the scrutiny by the European Court should be a strict one.
No doubt that journalists and media are to bear in mind the presumption of innocence when reporting and commenting on pending criminal proceedings, it is certainly one of the basic principles of journalistic ethics and may induce their civil liability. Criminalizing journalists and media because of the publication of (leaked) information from criminal investigations, because this kind of information as such, in abstracto and inherently risks to affect the rights guaranteed by Article 6 § 1 of the Convention, creates a new legal standard for court and crime reporting in Europe. In Belgium e.g. a journalist who obtained information in similar circumstances as in Bédat v. Switzerland would not be convicted, as there is only a criminal offence of abuse of access to criminal files when the files are forwarded or made public with the intention and with the effective consequence to harm the criminal investigation or the privacy rights or other rights of other parties involved in the case (Article 460ter of the Criminal Code).
The new standard introduced by the Grand Chamber makes it possible that state authorities will develop a stricter policy and will prosecute, as part of their positive obligations under Article 6 § 1, media and journalists because of publishing leaked information from criminal files, even in cases of media reporting about major crime that has shocked society.
Dirk Voorhoof, Human Rights Centre Ghent University (Belgium), Copenhagen University (Denmark), Legal Human Academy and member of the Executive Board of the European Centre for Press and Media Freedom (ECPMF, Germany)
Wednesday, 23 March 2016
It is my pleasure to present a guest post by Jennifer Babaie, a litigation fellow with the Open Society Justice Initiative. The note reflects the core points that a number of human rights NGOs submitted to the Court on the new Protocol 16, also known as the 'dialogue' protocol:
"On 30 July 2015, the European Court of Human Rights (ECtHR) invited contributions from NGOs on proposed amendments to the Rules of Court arising out of the implementation of Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). Protocol 16 creates a brand new mechanism allowing the ECtHR to issue advisory opinions on matters of ECHR law, in cases referred by national courts.
The Open Society Justice Initiative, together with 10 other NGOs responded to the court’s call by submitting detailed comments on the draft rules. In the note, the Justice Initiative addressed multiple short-falls of the draft amendments, ranging from substantive concerns to minor procedural issues. Additionally, the Justice Initiative has produced a briefing paper reflecting a detailed analysis of each of the proposed amendments to the rules, a comparative analysis of the ECtHR’s new advisory opinion procedures with those of the Court of Justice of the European Union and other regional human rights bodies, as well as a review of academic discussion of the issues.
Protocol 16 and the proposed rules of procedure are a significant expansion of the court’s power to provide advisory opinions. The new protocol, which will enter into force once it has been ratified by a minimum of ten states, introduces an entirely new system which allows the “highest courts and tribunals” of a state party to request a non-binding advisory opinion directly from the ECtHR. Domestic courts can seek opinions on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. They may also seek an advisory opinion for the purposes of clarifying the ECtHR’s case-law.
As of 16 March 2016, six states have ratified Protocol 16 (Albania, Finland, Georgia, Lithuania, San Marino, and Slovenia); another 10 have signed it. The purpose of Protocol 16 is twofold. First, it is intended to strengthen the interaction between national courts and the ECtHR. Second, it is intended to reduce the court’s excessive caseload.
For priority number one, the underlying rationale is that state parties will have access to more guidance from the court so that they can avoid future violations. With the advent of the new mechanism, national courts will be able to request advisory opinions from the ECtHR prior to the conclusion of their domestic case. Upon receipt of the court’s opinion, the national judge presiding over the case can make an informed judgment on the issue, potentially eliminating the need for an appeal to the ECtHR.
The hope of the drafters is that the issuance of advisory opinions will result in fewer violations of the convention, thus increasing the court’s efficiency and reducing its workload in the long run. However, what is not addressed by either the standing committee in charge of the ECtHR’s procedural rules or the committee of ministers in charge of drafting Protocol 16 is the extra work load that could result from a flurry of national judges seeking advisory opinions on a multitude of questions. Moreover, the rather vague language of the proposed amendments as currently drafted leaves the reader without a clear sense of just what exactly the necessary elements of a successful request are. Without greater resources being allocated to the ECtHR, it is difficult to see how the new mechanism will increase its efficiency rather than further hampering the court’s productivity.
In comments provided to the court by the collection of civil society partners including the Justice Initiative, three main problem areas were identified primarily relating to due process concerns.
Firstly, the amendments proposed do not include a mechanism to formally allow parties in domestic proceedings to intervene in the event that their case is referred to the ECtHR for an advisory opinion. The civil society organisations in consultation have proposed that the rules be amended to require the ECtHR to automatically notify the parties in a domestic proceeding that their case is the subject of an advisory opinion; in addition, the civil society collective propose that the parties be automatically invited to intervene in the advisory opinion process as a third party.
Secondly, the proposed amendments carry a very real risk of excluding the voice of the victim entirely from the advisory opinion proceedings. For example, draft rule X(B)(d) requires that a summary of the arguments made by the parties to the domestic proceedings should only be included with the request for an advisory opinion “if relevant”. It seems unlikely that arguments made on the very issue put to the ECtHR would not be relevant, but this qualification opens the door for arbitrary exclusions. The Justice Initiative and its partners propose that the rule be amended to clarify that the domestic court should always include summaries of the arguments of the parties wherever they address the issue for which an advisory opinion is sought.
Thirdly, the proposed amendments carry some risk that the domestic court requesting an advisory opinion will pre-judge the very issue for which it has sought clarity from the ECtHR. This risk exists because the draft rules explicitly invite the domestic court to give its own view on the question referred to the ECtHR. Forming a view on a case that has not been fully argued risks subordinating the due process owed to the parties. The Justice Initiative and its civil society partners propose to amend the current form of the draft rules to clarify what is not appropriate to include in the domestic court’s request: any opinion that might amount to pre-judging the question referred should be emphatically discouraged."