Monday 31 May 2010

European Court Awarded Four Freedoms Award 2010

Last Friday, the European Court of Human Rights was awarded the Four Freedoms Award 2010 in Middelburg, the Netherlands. The Awards are presented yearly to individuals and organisations who have worked towards the realisation of president F.D. Roosevelt's four freedoms: the freedom of speech and expression, the freedom of worship, the freedom from want and the freedom from fear (see also my earlier post here). The award was delivered by Dutch prime minister Jan Peter Balkenende (read his speech here) to president Costa of the Court (read his speech here). You can watch the highlights from the ceremony here, on local 'Omroep Zeeland' television. Congratulations to the Court!

Two New Academic Articles on ECHR

The newest overview of academic articles of the Netherlands Institute of Human Rights (SIM) at Utrecht University, where I am based, is available online. Two articles relate directly to the European Convention on Human Rights:

* P. Giosa, 'The condemnation of Turkey by the ECHR for the violation of property rights in Istanbul and the political impact of the decision on Turkey's candidacy for European Union membership', International Journal of Civil Society Law (2010) vol. 8, no. 1, pp. 56-62.

* Caroline C. Carney a.o., 'An analysis of the influence of the European Convention on Human Rights on the repossession of public housing in Ireland', Trinity College Law Review (2010) vol. 13, no. 1, pp. 55-70.

Wednesday 26 May 2010

Blog Anniversary: 2 years!

Today marks the second anniversary of this blog, which started on 26 may 2008 with this welcome post. Growing steadily over time, with 20,000 visitors in its first year, 70,000 in 2009 and already 50,000 in the first five months of this year, I am happy to say that there is a lot of interest in the Convention, the Court and in academic work written on it. A big thank you to all my readers for the reactions and for the information provided. Please continue to do so; your support and interest keeps this blog going!

Book and Seminar on Pilot Judgments

In two weeks time a new book on the issue of pilot judgments will be published: Philip Leach, Helen Hardman, Svetlana Stephenson & Brad K. Blitz, 'An Analysis of 'Pilot Judgments' of the European Court of Human Rights and Their Impact at National Level' (Intersentia 2010). This is the abstract:

As a response to widespread structural or endemic human rights violations, in 2004 the European Court began to issue pilot judgments, the aim of which was not only to exert further pressure on national authorities to tackle systemic problems, but also to stop the European Court itself being inundated with the same types of cases. Fashioned out of its own case law, and underpinned by the principle of subsidiarity, the Court has broken new ground with its pilot judgment procedure, both in terms of its diagnosis of the causes of systemic human rights violations, and the extent to which it is prepared to direct states to legislate, or take other steps, to resolve them.

This study analyses the principal characteristics of the pilot judgment procedure and its application in key cases to date. With case studies on Poland, Slovenia and Italy, a particular focus of the work is the adequacy of the response of national authorities to pilot judgments. It draws conclusions about the effectiveness of the procedure as a means of tackling systemic violations, and makes recommendations for its further development.
At the occasion of the launch, on 14 June, a special international seminar will be organised at the Court itself, with speakers from the Court, national courts and academia.

Tuesday 25 May 2010

New ECHR Articles in Human Rights Law Review

The newest issue of the Human Rights Law Review (volume 10, No. 2) has been pubished. It contains a number of ECHR-related articles. Here are the titles and abstracts:

* Alastair Mowbray, 'A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights'

This study begins by examining the origins of the fair balance principle. There follows an analysis of the application of the principle across a range of rights and freedoms guaranteed by the European Convention on Human Rights. The functions performed by the fair balance principle, together with the factors assessed by the Court when utilising the principle are distilled from the case-law. Conclusions are drawn as to the relationship between the fair balance principle and the margin of appreciation doctrine.

* Philip Leach, Helen Hardman, and Svetlana Stephenson, 'Can the European Court’s Pilot Judgment Procedure Help Resolve Systemic Human Rights Violations? Burdov and the Failure to Implement Domestic Court Decisions in Russia'

Pity poor Anatoliy Burdov! He has had to take the protracted route to Strasbourg—not once, but twice—in trying to uphold his rights. It is more than 20 years since he was called up by the military authorities to help clear up after the Chernobyl disaster. His fight for state benefits—due to him because of his exposure to radioactive emissions—still continues. The European Court of Human Rights (ECtHR) delivered judgment in his first case in 2002, and, in the second case in 2009, Burdov gave his name to the first ‘pilot’ judgment against Russia. He is still, even now, waiting for the Russian Government to comply with the decision. This article analyses not only these cases, and how the Russian authorities responded to them, but also the European Court’s new ‘pilot judgment procedure’, aimed at resolving the most intractable human rights violations occurring on the continent. Fashioned out of the ECtHR’s case law, the pilot judgment procedure has had a slow and uncertain start, since its inception in the case of Broniowski v Poland in 2004. However, with the ECtHR delivering four more ‘pilot judgments’ in 2009, the signs are that the procedure is ‘coming of age’. Through the prism of Burdov’s case, we attempt in this article to discern the effectiveness of pilot judgments in tackling systemic human rights violations.

* Annemarieke Vermeer-Künzli, 'Unfinished Business: Concurrence of Claims Presented before a Human Rights Court or Treaty Body and through Diplomatic Protection'

International law has not, yet, defined the limits of concurrent cases involving resort to a human rights mechanism and diplomatic protection. The European Court of Human Rights has on occasion dealt with questions of simultaneous procedures and the International Law Commission (ILC) has described the relation of diplomatic protection to other mechanisms in international law. Even so, the question has not been answered clearly. The present article offers an analysis of the relevant case law and ILC documents, showing the importance of having regard to the facts of the particular case rather than just considering whether a settlement has been reached.

Thursday 20 May 2010

Judgment on Voting Rights for the Mentally Disabled

Today the European Court of Human rights issued an important judgment in a case on voting rights for the mentally disabled: Alajos Kiss v. Hungary. The applicant in the case suffered from manic depression and had for that reason been placed under partial guardianship. Since the Hungarian Constitution contained an absolute voting ban for people put under guardianship, he could not vote in the 2006 parliamentary elections. The European Court held unanimously that such an absolute ban violated the right to free elections of Article 3 of Protocol 1 ECHR.

The Court did accept the Government's contention that "that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs" (para. 38.), but did not buy the consequence Hungary attached to it, namely an automatic exclusion from the right to vote. The Court thus held that the ban was disproportionate. It is useful to quote the relevant parts of the Court's reasoning in full:

41. The Court accepts that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck. In particular, it should be for the legislature to decide as to what procedure should be tailored to assessing the fitness to vote of mentally disabled persons. The Court observes that there is no evidence that the Hungarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stands.

42. The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing (Hirst v. the United Kingdom (no. 2) [GC], op. cit., § 82). In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State's margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (cf. also the example of those suffering different treatment on the ground of their gender - Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, race - D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ..., or sexual orientation - E.B. v. France [GC], no. 43546/02, § 94, ECHR 2008 ...). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (cf. Shtukaturov v. Russia, no. 44009/05, § 95, 27 March 2008).

43. The applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship. He may therefore claim to be a victim of the measure. The Court cannot speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed in compliance with the requirements of Article 3 of Protocol No. 1 (see mutatis mutandis Hirst v. the United Kingdom (no. 2), op.cit, §§ 48 to 52).

44. The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law, referred to above (paragraphs 14-17). The Court therefore concludes that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. (my emphasis, A.B.)
Undoubtedly this has consequences for other European countries as well. There is a strong parallel between this case and the earlier case of Hirst v. the United Kingdom (No. 2) of 2005 in which the Court found that blanket bans on voting rights for prisoners violated the Convention (not yet implemented by the UK, by the way). The principle of individual judicial assessment is now broadened to people with mental disabilities. This underscores the importance of the right to vote and the extreme caution needed when limiting that right. A kiss before voting - from the Court to the applicant - to paraphrase a famous James Bond movie!

Furthermore, it is notable that the Court refers for the very first time, as far as I am aware, to the recent UN Convention on the Rights of Persons with Disabilities (this is the international law instrument mentioned in para. 14, to which the Court refers).

Article on ECHR and Responsibility of Member States of International Organisations

Tobias Lock of University College London has published 'Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations Under the European Convention on Human Rights' on SSRN, a forthcoming article in the Human Rights Law Review. This is the abstract:

The paper examines and critically assesses the ECtHR’s case law applying and distinguishing the Bosphorus decision. The discussion revolves around two major points: the first is the ECtHR’s distinction between cases where there was a domestic act or omission of some sort so that the Bosphorus case applies and member states can (generally) be held responsible; and cases where no such act can be found so that they are dismissed as inadmissible ratione personae. It is argued that this distinction is not convincing. The second point is the application of the Bosphorus decision in a number of cases. The paper tries to explore whether the exact conditions for the applicability of the presumption and its rebuttal have become any clearer.

Wednesday 19 May 2010

EU antitrust fines and ECHR fair trial rights

It is my pleasure to post a guest contribution by my good friend Felix Ronkes Agerbeek, an excellent expert in EU law with a keen interest in human rights issues. His contribution addresses the links between two often disconnected fields: the antitrust law of the European Union and the fair trial norms of the European Convention on Human Rights. It is also a call on ECHR specialists to contribute to this debate:

Human rights lawyers do not usually worry much about the technicalities of European antitrust law. Likewise, competition lawyers rarely take the time to stay abreast of the case-law from Strasbourg. But occasionally the two fields meet. The latest encounter on the crossroads between competition law and fundamental rights is all about the money: the fines for violators of EU competition rules have been on the rise, and this has rekindled a critique that tries to strike at the heart of the EU’s system of antitrust enforcement.

Antitrust violations of a European-wide scale are normally investigated by the European Commission. When, after an extensive administrative procedure, a company is found guilty of having breached EU antitrust rules, the Commission can impose a fine. If the company disagrees, it can bring an appeal before the EU’s General Court in Luxembourg, where it may argue that it was not at fault or that the fine was too high. The General Court then meticulously analyses the findings of the Commission, both on the merits and on the level of the fines. If needed, the court can quash the decision or alter the amount of the fine.

Under EU law, antitrust fines must reflect the gravity and duration of the infringement and the Commission must take into account the circumstances of each case. Of course, these requirements are very broad, which is why the Commission has issued detailed guidelines on how it calculates its fines. In 2006, the Commission adjusted its fining policy and revised its guidelines. Since then, a chorus of business associations and lawyers from private practice has proclaimed – in court proceedings and in the press – that the EU’s system of antitrust enforcement falls short of human rights standards and is ripe for fundamental reform. (See, recently, MLex and The Economist, and Competition Commissioner Almunia’s reactions here and here.)

The argument runs as follows. These days, the Commission imposes heavier fines than before on cartels and on companies that abuse their market power. As a result, the stakes have become higher for companies charged by the Commission with breaching the EU’s antitrust rules. That’s why the EU’s procedures for antitrust enforcement should offer the same safeguards as criminal law proceedings. Most importantly, to meet the terms of Article 6 ECHR, antitrust sanctions have to be imposed by an independent court and not by the Commission.

At first blush, this might sound reasonable enough. However, there is a great deal of exaggeration and simplification in the claim that fines have increased so much in size that all of a sudden the EU’s system of antitrust enforcement runs foul of the Convention. In fact, as a matter of human rights law, that claim is questionable. Surely, the idea that fines have gone up is not just anecdotal. By and large it is true that fines in competition cases have climbed steadily since European-wide antitrust enforcement took off – although the legal maximum is still exactly the same as it was in the 1960s. But is it fair to say that, in recent years, a tipping point has been reached?

The first place where one should look for an answer is of course in the Convention itself and in the rich case-law on Article 6. It is well-known that the Court uses the so-called “Engel-criteria” to determine whether a prosecution is a “criminal charge” in the meaning of the Convention (Engel, Öztürk). The Court takes a broad view and the case-law confirms that Article 6 applies in many situations, including in antitrust proceedings (Jussila, Stenuit). There is no controversy here – indeed, the European Court of Justice and the Commission have long recognized that antitrust proceedings must meet the requirements of Article 6 (Baustahlgewebe). So the question is: what exactly are those requirements? Unfortunately, precisely because Article 6 casts such a wide net, there is no single, straightforward answer. Instead, the requirements of Article 6 may be more or less strict depending on the type of case at hand.

It’s probably too simplistic to say that there are only two kinds of cases, but the Court in Strasbourg has made it clear that there is a difference between cases involving “hard core criminal law” and other cases. Moreover, the Court has said that the “criminal-head guarantees” of Article 6 “will not necessarily apply with their full stringency” to cases that do not belong to “hard core criminal law” (Jussila). Still, many uncertainties remain. First of all, the criteria to decide whether a case belongs to “hard core criminal law” are unclear. Presumably, the relevant factors will resemble the Engel-criteria (the nature of the offence and the degree of stigma attached to it, the severity of the possible penalty, and the classification of the offence under domestic law), or at least they will hinge on a fairly similar underlying logic. Second, one may wonder if there are only two categories of cases – “hard core” and the rest – each with its own fixed set of requirements, or whether it is more a matter of degree, depending on the weight of the charge. Finally, the Court’s statement that the guarantees of Article 6 may “not necessarily apply with their full stringency” is rather vague. The case-law still has a long way to go before we may begin to know exactly what that means.

One thing is clear, though. The simple fact that Article 6 applies does not prevent the adoption of sanctions by an administrative body. On the contrary, according to the case-law it is perfectly acceptable that certain sanctions are imposed by way of an administrative decision. This is true for minor offences, but also for offences that may warrant “very substantial” fines (Bendenoun, Impar). The key condition is that there must be a possibility to bring an appeal before a judicial body that has full jurisdiction to review the decision (Janosevic, Bistrovic). All in all, the case-law contains various signals that a system such as the EU’s, in which the Commission enforces the antitrust rules subject to full review by the General Court, is compatible with Article 6. Naturally, that conclusion is strengthened by the fact that the EU’s system of antitrust enforcement offers extensive procedural safeguards – precisely to ensure those rights that are usually associated with traditional criminal law, such as the presumption of innocence, the right to be heard and the right to a fair trial within a reasonable time. Moreover, the General Court – quite rightly – is very exacting when reviewing the Commission’s decisions.

So is it all a storm in a teacup? It certainly seems to be. Nevertheless, given the increased financial stakes, some detractors of the current system seem determined to pursue the matter all the way to the highest European courts in Luxembourg and Strasbourg. Of course, those courts will have the final say. The safest conclusion that can be drawn today is that the debate would benefit from the participation of specialists in the field of the Convention. Until now, those engaged in the discussion are almost exclusively competition lawyers from private practice (e.g. Slater a.o., Wesseling - the latter in Dutch) and from the Commission (e.g. Wils, Castillo de la Torre). Not surprisingly, their views are diametrically opposed. Yet, especially with the EU’s accession to the Convention firmly on the horizon, an outside perspective from Convention experts could provide useful and timely insights into a topic that today occupies the minds of competition lawyers, but that might one day occupy the minds of the judges in Strasbourg.

* Felix Ronkes Agerbeek works for the Legal Service (competition team) of the European Commission. He represents the Commission in several cases before the Court of Justice and the General Court of the European Union. The views expressed above are strictly personal and should not be taken as the position of the Commission.
Many thanks, Felix!

Tuesday 18 May 2010

Kononov Revisited: No Violation of ECHR

History may repeat itself, but may also reverse itself. Vasiliy Kononov, an admired war hero in communist times for going behind enemy lines in WW II and taking action against alleged Nazi collaborators, was - after the fall of communism in Latvia - found guilty of war crimes. His partisan unit, part of the Red Army, had killed nine unarmed villagers. He went on to take his case to Strasbourg, were in 2008 a Chamber of the European Court of Human Rights, with a slight margin of four against three votes, had found that his conviction in Latvia contravened Article 7 ECHR (no punishment without law). At the time of the events, the Court held, the actions had not been contrary to international humanitarian law. See my earlier post on the Chamber's judgment here.

Subsequently, Latvia asked for a re-assessment of the case by the Grand Chamber of the Court, which issued its judgment yesterday. The Grand Chamber came to an opposite conclusion and ruled by fourteen votes to three that there had been no violation of Article 7. According to the Grand Chamber there had been a sufficiently clear legal basis, even at the time of the events in 1944, for the crimes of which Kononov was convicted. In the case it was debated whether the villagers should be seen as mere civilians or rahter as combatants who had received arms from the occupying Nazis. The Court held that, even if it were assumed that the villagers were combatants, that they were not carrying arms at the moment of the attack on the village and thus should have been allowed to surrender instead of being killed. Nor were the crimes committed decades ago statute-barred by any rule of international law. Finally, the Court held (in para. 238 of the judgment) that "having regard to the flagrantly unlawful nature of the ill-treatment and killing of the nine villagers in the established circumstances of the operation on 27May 1944, even the most cursory reflection by the applicant, would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable." By contrast, the dissenting judges, were of the opinion that clarity on the issue only came into existence with the Nuremberg trials after the war.

The case is a politically very sensitive one. Kononov acquired Russian nationality during the criminal proceedings in Latvia and Russia intervened twice on his behalf during the proceddings in Strasbourg. The first reactions from Russia are furious, accusing the Court of siding with the Nazis and of destroying the legacy of the Nuremberg trials. See this article in the Voice of Russia for an overview of reactions. Click here for the post of William Schabas on the case - he was one of the counsels on behalf of the Latvian government. As with the earlier Chamber judgment I am curious to hear what other specialists in international humanitarian law and criminal law think of the case.

Monday 17 May 2010

Book on Peaceful Protest and ECHR

A new book which covers and analyses articles 10 and 11 ECHR in the context of peaceful protest has just been published. It was written by David Mead of the Norwich Law School at University of East Anglia and is entitled 'The New Law of Peaceful Protest. Rights and Regulation in the Human Rights Act Era' (Hart Publishing 2010). Although the focus is on the situation in the UK, the overview of ECHR jurisprudence makes the book relevant for a wider European audience. This is the abstract:

The right to demonstrate is considered fundamental to any democratic system of government, yet in recent years it has received little academic attention. However, events following the recent G20 protests in April 2009 make this a particularly timely work.

Setting out and explaining in detail the domestic legal framework that surrounds the right of peaceful protest, the book provides the first extensive analysis of the Strasbourg jurisprudence under Articles 10 and 11 of the European Convention on Human Rights, offering a critical look at recent cases such as Öllinger, Vajnai, Bukta, Oya Ataman, Patyi and Ziliberberg, as well as the older cases that form its bedrock. The principles drawn from this case-law are then synthesised into the remainder of the book to see how the right of protest enshrined in the Human Rights Act 1998 now operates. The five central chapters show how the right is defined: the restrictions on the choice of location of a protest; the constraints imposed on peaceful, persuasive protest; the near total intolerance of any form of obstructive or disruptive protest; the scope of preventive action by the police; and the extent to which commercial targets can avail themselves of private law remedies. This contemporary landscape is highlighted by critical analysis of the principles and case law -- including the leading decisions in Laporte, Austin, Jones and Lloyd and Kay. The book also highlights and develops themes that are currently under-theorised or ignored, including the interplay of the public and the private in regulating protest; the pivotal role played by land ownership rules; and the disjuncture between the law in the books and the law in action.

While the book will appeal primarily to scholars, students and practitioners of law – as well as to campaigners and interest groups – it also offers political and socio-legal insights, which will be of interest equally to non-specialists.

Wednesday 12 May 2010

Updates on Communicated Cases

A good way to keep track of cases is a special update service on the website of the Court. Each application that comes to the Court's registry and is not deemed by the Court's judges to be clearly inadmissible, will be further considered by the Court. One of the first steps in that process is that the state against which the case is lodged, has an opportunity to react. In order to do so a number of documents are sent to that state: the application, the relevant documents, a statement of facts made by the registry, and a series of questions and issues which the state is asked to address. The applicant can then later react to the state's reaction. Each week, the Court puts a list of communicated cases on its website. The most recently published one (last week) can be found here. That latest update for example shows that there is an application on pension entitlements pending against both Serbia and Montenegro, since the facts relate to the time when the two states still formed a single state.

A good way to stay updated on which cases have passed the Court's initial sifting process.

Tuesday 11 May 2010

Court Judgment Implementation in Romania and Moldova

Both Moldova and Romania need to step up their current efforts to ensure that the European Court's judgments are fully implemented. That is the main conclusion of the of Christos Pourgourides, PACE rapporteur on the implementation of judgments of the European Court of Human Rights. He visited both state parties to the ECHR earlier this month. Specifically on Romania, the rapporteur addressed "the problems of non-enforcement of domestic final decisions, including those concerning restitution of properties nationalised under the communist regime, or compensation for their loss, and the excessive length of domestic judicial proceedings." Concerning neighbouring Moldova, the rapporteur dealt specifically with "the problems of abusive use of force by police officers, lack of effective investigation into such abuses, poor conditions in detention facilities and non-enforcement of domestic final decisions." For the general progress report written by the rapporteur last year, click here. The travelling by the rapporteur may well serve to keep implementation on the agenda in state parties with structural deficiencies. These are the links to the full press releases on Romania and Moldova. More than mere good intentions are needed, as the rapporteur himself emphasized.

Monday 10 May 2010

Hate Speech Decision on Le Pen

It is my pleasure to feature another guest post on this blog by professor Dirk Voorhoof of Ghent University on last week's Court decision in the case of Le Pen v. France (available only in French), the (in)famous French politician:

Admissibility decision in the case of Le Pen v. France (application no. 18788/09)
Freedom of political speech no justification for hate speech

In 2005, Mr Jean-Marie Le Pen, the president of the French “National Front” party, was fined 10,000 euros for “incitement to discrimination, hatred and violence towards a group of people because of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion”, on account of statements he had made about Muslims in France in an interview with Le Monde daily newspaper. He asserted, among other things, that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge”.

The Paris Court of Appeal sentenced him to another fine, of the same amount, in 2008 after he commented on the initial fine, in the following terms, in the weekly Rivarol: “When I tell people that when we have 25 million Muslims in France we French will have to watch our step, they often reply: ‘But Mr Le Pen, that is already the case now!’ – and they are right." The Court of Appeal considered that Mr Le Pen’s comments to the newspaper suggested that the security of the French people, whose reactions allegedly went further than his own offending statements, depended on them rejecting the Muslim community. It held that the applicant’s freedom of expression was no justification for statements that were an incitement to discrimination, hatred or violence towards a group of people.

The Court of Cassation dismissed an appeal lodged by Mr Le Pen in which he argued that his statements were not an explicit call for hatred or discrimination and did not single out Muslims because of their religion, and that the reference to Islam was aimed at a political doctrine and not a religious faith. In a decision of 20 April 2010 the ECtHR has now declared the application of Mr. Le Pen, relying on Article 10 ECHR (freedom of expression) manifestly ill-founded and hence inadmissible.

The ECtHR is of the opinion that the French authorities’ interference with Mr Le Pen’s freedom of expression, in the form of a criminal conviction, had been prescribed by law (Art. 23-24 of the French Press Freedom Act, Loi sur la Liberté de la Presse) and pursued the legitimate aim of protecting the reputation or rights of others. Again it was crucial to decide whether or not the conviction of Mr Le Pen was to be considered necessary in a democratic society, taking into account the importance of freedom of expression in the context of political debate in a democratic society. The Court reiterated that freedom of expression applied not only to “information” or “ideas” that were favourably received, but also to those that offended, shocked or disturbed. Furthermore, anyone who engaged in a debate on a matter of public interest could resort to a degree of exaggeration, or even provocation, provided that they respected the reputation and rights of others. When the person concerned was an elected representative, like Mr Le Pen, who represented his voters, took up their concerns and defended their interests, the Court has to exercise the strictest supervision of this kind of interferences with freedom of expression.

Le Pen’s statements had been made in the context of a general debate on the problems linked to the settlement and integration of immigrants in their host countries. Moreover, the varying scale of the problems concerned, which could sometimes generate misunderstanding and incomprehension, required considerable latitude to be left to the State in assessing the need for interference with a person’s freedom of expression. In this case, however, Mr Le Pen’s comments had certainly presented the Muslim community as a whole in a disturbing light likely to give rise to feelings of rejection and hostility. He had set the French on the one hand against a community whose religious convictions were explicitly mentioned and whose rapid growth was presented as an already latent threat to the dignity and security of the French people. The Court refers to the findings by the French Court, considering that

« les propos du requérant étaient assurément susceptibles de donner une image négative, et même inquiétante, de la « communauté musulmane » dans son ensemble. Elle constate que, dans l'arrêt rendu par la cour d'appel, celle-ci se livre à une analyse du propos du requérant pour en déduire qu'il instillait dans l'esprit du public la conviction que la sécurité des Français passait par le rejet des musulmans et que l'inquiétude et la peur, liées à leur présence croissante en France, cesseraient si leur nombre décroissait et s'ils disparaissaient. Ainsi, comme l'ont relevé les juges d'appel, le requérant prenait-il à témoin, au-delà de ses électeurs et du lectorat auquel il s'adressait, les « gens », identifiés comme le peuple français, de ce que d'ores et déjà, en présence de musulmans, ils devraient se tenir à distance d'eux et faire preuve de soumission à leur égard, alors que lui-même s'était contenté de présenter comme une menace pour eux la forte croissance de cette communauté.
La Cour estime que, de cette manière, le requérant opposait, d'une part, les Français et, d'autre part, une communauté, dont l'appartenance religieuse est expressément mentionnée et dont la forte croissance constituerait une menace, déjà présente, pour la dignité et la sécurité des Français. La Cour estime également que les propos du requérant étaient susceptibles de susciter un sentiment de rejet et d'hostilité envers la communauté visée, compte tenu du sens et la portée qu'il donnait tant à son message qu'à la notion de « gens » qu'il a employée ».

The reasons given by the domestic courts for convicting Mr Le Pen had thus been relevant and sufficient. Nor had the penalty imposed been disproportionate. The Court recognises that a fine of 10.000 euros is an important amount, but reminds that Le Pen under French law had risked a sentence to imprisonment. Therefore the Court did not consider the sanction to be disproportionate. On these grounds the Court found that the interference with Mr Le Pen’s enjoyment of his right to freedom of expression had been “necessary in a democratic society”. The complaint of Mr. Le Pen was accordingly rejected.

The decision of 20 April 2010 in the case of Le Pen v. France is fully in line with the case law of the ECtHR not accepting ‘hate speech’ as part of public or political debate being protected under Article 10 of the Convention. Mr Le Pen is even confronted with a kind of boomerang-effect of the Court’s case law, as in an earlier case the Grand Chamber of the ECtHR had found that defamatory and insulting statements about Mr Le Pen published in a book were finally not protected by Article 10 of the Convention as these statements were to be considered as a form of hate speech. The Grand Chamber indeed in Lindon, Otchakovsky-Laurens and July v. France had regard “to the nature of the remarks made, in particular to the underlying intention to stigmatise the other side, and to the fact that their content is such as to stir up violence and hatred, thus going beyond what is tolerable in political debate, even in respect of a figure who occupies an extremist position in the political spectrum” (Lindon, Otchakovsky-Laurens and July v. France, 22 October 2007, § 57). It is precisely this argument, that hate speech is beyond what is tolerable in political debate, that has now turned against Mr Le Pen.

In the case of Féret v. Belgium the European Court showed an analogue approach (ECtHR, Féret v. Belgium, 16 July 2009). In this judgment the Court reiterated that it was crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance. To recommend solutions to immigration-related problems by advocating racial discrimination was likely to cause social tension and undermine trust in democratic institutions. Therefore, according to the ECtHR, in the case of Féret v. Belgium, there had been a compelling social need to protect the rights of the immigrant community, as the Belgian courts had done by convicting Mr Féret for incitement to hatred and discrimination. The Court thus found that there had been no violation of Article 10 ECHR (see also D. Voorhoof, “Politicus die haat zaait is strafbaar”, Mediaforum 2009/10, pp. 372-377).

Both the judgment of 16 July 2009 in the case of Féret v. Belgium and the decision of 20 April 2010 in the case of Le Pen v. France contain undoubtedly important arguments and guidelines for the Amsterdam Criminal Court in the pending case against Geert Wilders, the Netherlands’ M.P. who has been summoned to the Amsterdam Criminal Court on 21 January 2009 for inciting hatred and discrimination and insulting Muslims (Amsterdam Criminal Court, 21 January 2009, LJN: BH0496 and Mediaforum 2009/3, 119, with comment by A. Nieuwenhuis, pp. 131-133. See also R.A. Lawson, “Wild, Wilder, Wildst. Over de ruimte die het EVRM laat voor de vervolging van kwetsende politici”, NJCM-bulletin 2008/4, pp. 469-484).

Dirk Voorhoof, Ghent University and Copenhagen University

Some other relevant decisions and judgments by the ECtHR on hate speech:

- Jersild v. Denmark, 23 September 1994.
- Lehideux and Isorni v. France, 23 September 1998
- Garaudy v. France (no. 65831/01), 24 June 2003 (decision)
- Gündüz v. Turkey, 4 December 2003
- Seurot v. France (no. 57383/00), 18 May 2004 (decision)
- Norwood v. United Kingdom (no. 23131/03), 16 November 2004 (decision)
- Witzsch v. Germany (no. 7485/03), 13 December 2005 (decision)
- Lindon, Otchakovsky-Laurens and July v. France, 22 October 2007(Grand Chamber)
- Soulas a.o. v. France, 10 July 2008
- Balsytè-Lideikiené v. Lithuania, 4 November 2008
- Willem v. France, 16 July 2009
- Féret v. Belgium, 16 July 2009

Thursday 6 May 2010

(Lack of) Follow-up on Sejdic and Finci

In December last year the European Court of Human Rights ruled that some provisions of the Bosnian Constitution, as negotiated in the context of the Dayton Peace Agreement, violated the ECHR. Sejdic and Finci (shown on the photo) were prevented from running for certain political positions, because they were Roma and Jewish and therefore did not belong (nor did they want to proclaim themselves as belonging) to one of the three main groups in Bosnia: Bosniaks, Croats and Serbs. See my earlier post on the judgment here. Ever since, the Council of Europe has been calling upon Bosnia to initiate changes, especially with elections coming up this autumn, but so far no real progress has been made. I can recommend this very informative article on the website of Radio Free Europe on the developments since the judgment.

Wednesday 5 May 2010

Article on Principle of Effectiveness

The newest issue of the Nordic Journal of International Law (Vol. 79, No. 2, 2010) contains an article by Daniel Rietiker, who works at the registry of the Court. It is entitled 'The Principle of "Effectiveness" in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law - No Need for the Concept of Treaty Sui Generis'. This is the abstract:

The recent past has shown an ever-growing fragmentation of the international legal system where lawyers and judges are facing more and more the phenomenon of the same legal question being discussed in different fora. This is particularly the case in the field of human rights that entails the dispersal of responsibilities for interpretation of numerous instruments among various different judicial and quasi-judicial bodies, of both universal and regional nature. In order to secure coherence and legal certainty in the system, it is important to respect a set of principles and rules of general international law, in particular Articles 31-33 of the 1969 Vienna Convention of the Law of Treaties (VCLT). The first goal of this article is to analyse whether the Court applies the rules of the VCLT to the interpretation of the European Convention on Human Rights (ECHR). Secondly, assuming that the VCLT fully applies, it will be analysed whether Article 31(1) VCLT is flexible enough to allow nevertheless some leeway for the development of specificities, especially as a result of the particular nature of the ECHR. Thirdly, it will be shown that the Court has indeed developed a set of specific methods of interpretation, aiming to render the rights enshrined in the ECHR effective. From the author's point of view, they can all be regarded as sub-forms (or partial aspects) of the teleological interpretation. He distinguishes between four dimensions of the principle of "effectiveness".
Greetings from beautiful Mongolia to all my blog readers, where I am guest lecturing this week.