Friday 19 December 2008

Last Post of 2008

With almost 20,000 pageviews from nearly a 100 countries since its start at the end of May, this weblog has gathered a large group of readers. It is to you all that I would like to extend my thanks, for it is your reactions that kept me going, trying to provide you all kinds of ECHR-related news.

This is my last post of this calendar year, but I will be back in full swing on January 5. For those of you who wish to read a judgment under the Christmas tree, I can recommend Khurshid Mustafa and Tarzibachi v. Sweden: on a family originally from Iraq, evicted from their apartment in Sweden for refusing to remove a satellite dish which enabled them to watch television programmes from their country of origin. One may specifically consider with a smile the Court's ironic obiter dictum that it concerned "a tenement house with no particular aesthetic aspirations"!

Best wishes for the end of the year, dear readers, and see you in 2009!

Thursday 18 December 2008

Article on Impartiality of ECtHR Judges

Professor Eric Voeten of Georgetown University has just published the article 'The Impartiality of International Judges: Evidence from the European Court of Human Rights' in the most recent issue (vol. 102, issue 4, 2008) of the American Political Science Review. This is the abstract:

Can international judges be relied upon to resolve disputes impartially? If not, what are the sources of their biases? Answers to these questions are critically important for the functioning of an emerging international judiciary, yet we know remarkably little about international judicial behavior. An analysis of a new dataset of dissents in the European Court of Human Rights (ECtHR) yields a mixed set of answers. On the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings. There is some evidence that career insecurities make judges more likely to favor their national government when it is a party to a dispute. Most strongly, the evidence suggests that international judges are policy seekers. Judges vary in their inclination to defer to member states in the implementation of human rights. Moreover, judges from former socialist countries are more likely to find violations against their own government and against other former socialist governments, suggesting that they are motivated by rectifying a particular set of injustices. I conclude that the overall picture is mostly positive for the possibility of impartial review of government behavior by judges on an international court. Like judges on domestic review courts, ECtHR judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores.

Wednesday 17 December 2008

Television Commercials for Political Parties

The regulation of advertising for political parties on television is an issue hotly debated in many countries. In Norway there is a complete ban on such advertising. Thus when a local television station (TV Vest) broadcasted adverts for the Pensioners Party, it was fined. Both TV Vest and the Pensioners Party lodged a complaint in Strasbourg and the Court found in their favour: Article 10 ECHR (the freedom of expression) had been violated, according to the Court in its judgment last week in TV Vest AS & Rogaland Pensjonistparti.

Interestingly, Norway defended the ban on the grounds that allowing advertising would allow powerful financial groups to market their opinions. The Court noted, however, that the ban in this case had the opposite effect by precluding any advertising for a party which barely got mentioned in TV programmes or the news. Therefore, advertising was the only way to convey its message to voters on TV. The Court also mentioned that the adverstiement at issue was descriptive and a mere call to vote. The Court also considered that no particular sensitivities were at play (such as in the case of religious advertising in the Irish context in the case of Murphy of 2003) and that it could not be supported that there was no alternative to a blanket ban. Societal context thus appears particularly important. The Court found that neither the ban nor the fine had been "necessary in a democratic society". The judgment contains a concurring opinion by Judge Jebens.

The press release can be found here.

Tuesday 16 December 2008

Systemic Problems of Romanian Restitution

Last week, the Court gave a pilot-like judgment in the case of Viasu v. Romania. The applicant in the case tried in vain to have a compensation order under current Romanian restitution legislation enforced. Viasu's plot of land had been nationalised in the Communist era, and restitution in itself was impossible because the land in question was being used as a mine.

The Court noted that many others, including many which had an application pending in Strasbourg, found themselves in the same situation. The Court found a violation of Article 1 of Protocol 1 ECHR (peaceful enjoyment of possessions), since the national compensation decisions for Mr. Viasu had not been enforced for years. The problem was caused by the very complicated restitution system, which had undergone many legislative changes leading to legal uncertainty. The Court refers to this as overabundant and largely ineffective legislative activity ("activité normative surabondante et ... largement inefficace", para. 72). In this sense the problem was systemic. This of course implies that the state involved has to take action which goes beyond the circumstances of the case at hand.

The most interesting part in this judgment is probably the Court's reasoning under Article 46 (states have to abide by the Court's judgments). The Court makes reference to the thousands of comparable cases in Romania and to the dozens of its own judgments since the first case on the issue, Brumarescu. In addition many comparable cases are, as indicated, still pending. This not only a factor leading to increased state responsibility, but also endangers the effectiveness of the ECHR's machinery (in the light of the high case load). The Court then continues on a path it has increasingly taken in the last few years, that of indicating more precisley what a state is expected to do. As in the past, it strongly emphasizes that these are only indications and not orders, since it is for the state, under the supervision of the Committee of Ministers, to choose the means of implementation. This is the relevant and revealing part of the judgment (para. 83, in French):

Pour aider l'État défendeur à remplir ses obligations au titre de l'article 46, la Cour a cherché à indiquer, à titre purement indicatif, le type de mesures que l'État roumain pourrait prendre pour mettre un terme à la situation structurelle constatée en l'espèce. Elle considère que l'État défendeur doit, avant tout, soit supprimer tout obstacle s'opposant à l'exercice effectif du droit des nombreuses personnes touchées par la situation jugée par elle contraire à la Convention, comme c'est le cas du requérant, ou à défaut, offrir un redressement approprié. L'État défendeur doit donc garantir par des mesures légales et administratives appropriées la réalisation effective et rapide du droit à restitution, qu'il s'agisse d'une restitution en nature ou de l'octroi d'une indemnité, conformément aux principes de la prééminence du droit et de la légalité de la protection des droits patrimoniaux énoncés à l'article 1 du Protocole no 1, en tenant compte des principes énoncés par la jurisprudence de la Cour en matière d'indemnisation (arrêt Broniowski précité, §§ 147-151, 176 et 186). Ces objectifs pourraient être atteints, par exemple, par l'amendement du mécanisme de restitution actuel, dont la Cour a relevé certaines faiblesses, et la mise en place d'urgence de procédures simplifiées et efficaces, fondées sur des mesures législatives et règlementaires cohérentes, qui puissent ménager un juste équilibre entre les différents intérêts en jeu.
For the applicant there was a directly positive outcome: Romania is to pay him 115,000 euros within three months. This in itself may form a strong inducement for the authorities to provide clarity in the restitution law system.

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

Wednesday 10 December 2008

Happy Birthday Universal Declaration!

Today it is exactly 60 years ago that the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations. A reason to celebrate and to emphasize the enduring value and necessity of this document, especially in the face of the world's current and widespread violations of those rights. Today, the European Court's president gave his views in his own declaration:

In 2008 Human Rights Day coincides with the 60th anniversary of the Universal Declaration of Human Rights. Without the Universal Declaration, one of the first great achievements of the United Nations, nothing would have been possible. It called into being most of the later international human rights protection instruments, and the European Convention on Human Rights, signed as early as 1950, directly follows the line it traced.

The three regional human rights courts (African, European and Inter-American) have just held a major colloquy in the Human Rights Building, on 8 and 9 December, which provided an opportunity to compare case-law and practice.

It will soon be fifty years since the Strasbourg Court began to apply and interpret the Convention, and it is proud to have delivered more than 10,000 judgments, which have binding force and translate into concrete and enforceable terms the main principles solemnly set forth in the Declaration.

Our Court has drawn the broad lines of the right to a fair trial, the right to respect for private life, freedom of the press, the right to life and physical integrity and so on. More recently, it has intervened in new fields, such as education, the environment and bioethics. It has affirmed its case-law on protection of the rights of aliens, including in the (certainly legitimate and indispensable) context of combating terrorism. It has also tackled new social problems, such as those of a sexual nature.

The Court has successfully responded to the need to take into account the evolution of our societies and the appearance of new problems and new technologies. The diversity of the cases it has to deal with and the ever growing number of applications show that, more and more, people are turning towards the Court and placing their trust in it, with the result that its workload has been significantly increased. The celebrations – today of the 60th anniversary of the Universal Declaration, next year of the 50th anniversary of our Court – must not be focused on the past alone: we also have to think about the long-term future of the European human-rights protection system, to which we must give a new lease of life.

In the same way, Human Rights Day should celebrate what has been achieved in the past and turn towards the future. For sixty years the United Nations and the regional organisations like the Council of Europe have led humanity forward on the path of justice and freedom. But there is still a long road to travel. Let us unite our forces for the journey!

Tuesday 9 December 2008

DNA Retention Struck Down

Last week, om 4 December, the Grand Chamber delivered its judgment S. and Marper v. United Kingdom, a highly anticipated case on the retention of fingerprints and DNA by the British authorities. The complaints centered on the situation of persons who had been suspected of crimes but who had subsequently either been acquitted or whose proceedings had been discontinued. Current British law allowed for the unlimited DNA, cellular samples and fingerprint retention of that category of persons, even when such persons requested the authorities to destroy such samples.

The Grand Chamber unanimously found that this situation violated the right to respect for privacy under Article 8 ECHR. The judgment contains noteworthy passages on the retention of DNA as an interference with private life. In addition, the Court noted (in para. 110) that "England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence." This affects the margin of appreciation (para. 112):

In the Court's view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.
The Court concluded that the existing blanket and unlimited retention of this kind of personal information overstepped any acceptable margin of appreciation.

The case thus indicates the outer limits of the acceptable storage of personal information. In the following years - considering the high relevance of the issue in most state parties to the ECHR - the issue will certainly resurface. What can already be concluded from this case, is that the state should carefully balance the interests of society and the individual interest of privacy. Blanket and general rules applying to everyone irrespective of guilt or nature of the suspected crime just will not do.

The press release can be found here. A video of the delivery of the judgment by President Costa can be watched here.

Friday 5 December 2008

Round-up of New Academic ECHR Articles

Just before the weekend, a short round-up of recent ECHR-related articles in academic journals:

Specifically on ECHR and health there is an article in the European Journal of Health Law (2008, vol. 15, no. 4):
- Testing the margin of appreciation: therapeutic abortion, reproductive 'rights' and the intriguing case of Tysiac v. Poland, by N. Priaulx (p. 361-379).

Finally the International Journal on Minority and Group Rights (2008, vol. 15, no. 1) contains this article:
- Minority mobilisation in Greece and litigation in Strasbourg, by K. Tsitselikis (p. 27-48).

Other recent articles on human rights law can be found on the new current contents selection of the Netherlands Institute of Human Rights SIM. A great resource!

Wednesday 3 December 2008

Privacy, Internet, and Children

The protection of privacy is a major problem on the internet. But the situation gets even more complicated when the protection of the privacy of one person negatively affects the privacy of another person. That is exactly what happened in the case of K.U. v. Finland, in which the Court delivered its judgment yesterday. The case was lodged by a Finnish boy. He complained that in 1999, when he was 12 years old, someone posted a sexual advertisement about him on the internet without his knowledge, with a link to his picture and email address. The ad indicated that he was looking for "an intimate relationship with a boy of his age or older to show him the way". Subsequently, he received an email from a man who wanted to meet him to "see what he wanted". When the boy's father complained to the police and asked them to bring charges, it appeared that the internet provider could not be forced under Finnish law in the context of slander (under which the Finnish courts revierwed the case) to divulge the identity of the person that had posted the ad.

The European Court considered the case under Article 8 ECHR (right to respect for privacy) considering the "the potential threat to the applicant's physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age." (para. 41). It held that the state had failed in its positive obligation to effectively protect the applicant by failing to take steps to identify and prosecute the perpretrator. Let me cite two relevant passages from the judgment:

The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes. Also the widespread problem of child sexual abuse had become well-known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet. (para. 48)

Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. (para. 49)
In conclusion, the Court unanimously found a violation of Article 8. Thus the judgment offers important pointers on the extremes within which the state's balancing exercise in these matters should take place. A welcome development!

To Finland's (albeit late) credit, new legislation has come into force which does permit for disclosure of identity in comparable cases.

The press release in this case can be found here.

Monday 1 December 2008

Article on Proportionality in ECHR Judgments

Stavros Tsakyrakis of the University of Athens has just posted an online article on the issue of balancing in ECHR judgments, entitled 'Proportionality: an Assault on Human Rights', which delivers a biting critique of the current proportionality approach. This is the abstract:

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamentals rights. The European Court of Human Rights is routinely balancing human rights against each other and against conflicting public interests and has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights. The paper examines the debate on balancing in the context of American constitutional law and the Convention, and discusses theories which claim that some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes and suggests that courts should instead focus on the real moral issues underlying such disputes.