Thursday 30 September 2010

The Conscience of Europe

As a spin-off of last year's 50th anniversary of the Court a new book entitled grandly 'The Conscience of Europe' ('La Conscience de l'Europe' in the French version) will be published in January. A true insiders' view on the Court's history, with contributions of several of the current judges and biographical portraits of former Court presidents, pieces on the Court's current and former buildings and an outlook on the future. This is how the Court's president, Jean-Paul Costa, introduces the book:

One of the purposes of this book is remembrance. The European Court of Human Rights is a human institution, dedicated to the protection of human beings. The protection of human rights is a noble calling, and many have served it nobly at Strasbourg. This book looks back to the inception and growth of the Court, the people who composed it and who came before it, and the events and achievements that go to make up a fascinating institutional story. The book also looks ahead to what the future may hold. Some of the proposals made at various points in the past ten years are set out, up to and including the milestone conference at Interlaken in February 2010. Growth and adaptation are vital qualities in all living things. I hope that the contents of this book, which tell of an enduring commitment to the protection of fundamental human rights, will encourage and inspire the present generation to whom the future of the European Convention on Human Rights is entrusted. Beyond the institutional and legal dimensions, the Court’s history is also to be told through the personal recollections of those who were part of it for a time. Several contributors have shared some of their personal recollections of their time at Strasbourg. Through these, the reader will learn some of the lore that has built up in an institution that has reached the half-century mark.

Tuesday 28 September 2010

Cartload of ECHR Articles

A whole cartload of journal articles, if one may say so irreverently, for all readers to enjoy this fall. It certainly reflects that the European Convention of Human Rights still enjoys a growing interest among researchers.

In the International and Comparative Law Quarterly (vol. 59-3, 2010) one may find two case notes on important Strasbourg judgments:
* J. Barker and B. Brockman-Hawe, ‘ECHR: Bijelic v. Montenegro and Serbia, judgment of 11 June 2009’ (p. 845-867).
* J. Barker and E. Papastavridis, ‘ECHR: Medvedyev et al v. France, judgment of 29 March 2010’ (p. 867-882).

The latest issue of European Public Law (vol. 16-4, 2010) features two ECHR-related articles:
* A. Mowbray, ‘European Court of Human Rights: May 2009-April 2010’ (p. 495-522).
* O. Pedersen, ‘The ties that bind: the environment, the European Convention on Human Rights and the rule of law’ (p. 571-595).

The US-based Columbia Journal of Transnational Law (vol. 48-2 2009/10) includes:
* A. Seaman, ‘Permanent residency for human trafficking victims in Europe: the potential use of article 3 of the European Convention as a means of protection’ (p. 287-320).

In the International Criminal Justice Review (vol. 19-3 of 2009) one may find:
* A. Hallo de Wolf and D. Wallace, ‘The overseas exchange of human rights jurisprudence: the U.S. Supreme Court in the European Court of Human Rights’ (p. 287-307).

The Maastricht Journal of European and Comparative Law (No. 2 of 2008) contains (somewhat older, but not notified on here before):
* M. Marmo, ‘The execution of judgments of the European Court of Human Rights - a political battle’ (p. 235-276).

And the otherwise Dutch-language journal Rechtsgeleerd Magazijn Themis (no. 3, 2009) includes an article in English:
* M . Goodwin, ‘Taking on racial segregation: the European Court of Human Rights at a Brown v. Board of Education moment?’

Monday 27 September 2010

Pilot Flies Back to Moscow

Last week the European Court of Human Rights issued two decisions in cases concerning the non-enforcement of domestic court judgments (Nagovitsyn and Nalgiyev) and the excessive length of national court proceedings (Fakhretdinov and Others) in Russia. The human rights complaints of the five applicants (in total) were declared inadmissible, since the persons in question were first required to exhaust a new domestic remedy which provided for compensation in such cases.

These are the latest echos of the pilot judgment in the case of Burdov v. Russia (No. 2) of 2009 in which the Court addressed the systemic problem of non-enforcement of domestic court judgments in the Russian Federation. It held in that judgment that Russia had to set up national compensation procedures for people victims of such non-enforcement. See my earlier post on the case here. Russia let the deadline, which had been set by the Court, slip without taking visible action. This led to admonishments by the Council of Europe's Committee of Ministers in December of last year. In May of this year, however, a Compensation Act entered into force, which was also open to those whose claims were pending in Strasbourg. This new law covered both kinds of human rights violations: non-enforcement of judgments and court proceedings taking too long.

In the two most recent decisions the Court observed that the new national remedy was available, that Russian courts were required by the law to apply ECHR compensation criteria, and that it was designed to remedy the problems at stake, also flowing from the Burdov pilot judgment. Even though domestic practice was as yet almost entirely absent, the Court clearly gave the Russian authorities the benefit of the doubt. However, matters are not finished, since the Court also noted that in practice problems might arise, thus leaving the door slightly open for new future complaints. It did not, however, want to rule in abstracto on the probability of such failure of the new remedy. It held that "the Court's position may be subject to review in the future depending, in particular, on the domestic courts' capacity to establish consistent case-law under the Compensation Act in line with the Convention requirements. Furthermore, the burden of proof as to the effectiveness of the new remedy will lie in practice with the respondent Government." Thus, once in the future applicants (maybe even the very same persons again) would claim the remedy was innefective, it would be for the state to prove the contrary.

The practical result is that hundreds of applicants who had lodged claims after the Burdov judgment of January 2009 are now required to try the new remedy on the national level. A slight easing of the case-load on the Strasbourg docket for sure. But it is not certain what the future may hold for these applications. One may only hope that both the Committee of Ministers (in its offical capacity of supervising the implenmentation of ECtHR decisions) and the Court itself in future cases of people who have tried that mechanism, remain vigilant as to the effectiveness in practice of the compensation mechanism. In addition, the Committee of Ministers should make sure that Russia indeed also tackles the underlying problems. Otherwise, this latest "pilot" step is only a stay of execution for both Strasbourg and the applicants.

The decisions can be seen in light of a more general development in which the Court tries to put the subsidiarity principle (it is in the first place for states to solve human rights problems) into practice. Earlier this year, in a similar vein, applications of Cypriots reclaiming lost property were relegated back to the national level - in that case a compensation commission set up in Northern Cyprus.

Tuesday 21 September 2010

Article on 'European Consensus' at the Court

Kanstantsin Dzehtsiarou, a PhD researcher at University College Dublin, has just posted a working paper on one of the more opaque aspects of Strasbourg case-law: the notion of a European consensus : 'Consensus from within the Palace Walls'. The innovative aspect is that his findings are based on interviews with the judges in Strasbourg themselves. This is the abstract:

The Article is based on interviews with Judges of the European Court of Human Rights examining their attitude to the European Consensus argument conducted by the author in 2008-2009. The Judges were asked about the impact the European Consensus argument can have on their judgments and what those situations are when they can decide a case in a way opposite to European Consensus. The judges also identified certain functions that comparative law and European Consensus can accomplish in the Court’s reasoning. The process of consensus identification was also a separate issue discussed with the judges during the interviews. The article summarises an attitude to European Consensus by the decision-makers in the Court.

Monday 20 September 2010

Introduction to the ECHR by the Council of Europe itself

Council of Europe Publishing has just published a book which functions as a basic and very short (87 pages) introduction to the ECHR: 'The Council of Europe and human rights - An introduction to the European Convention on Human Rights', authored by Martyn Bond. This is the summary:

Just what are your human rights, and how does the Council of Europe protect them? This small book tells the story simply and clearly, making a complicated issue straightforward. It offers examples illustrating each right in the European Convention on Human Rights, and short explanations placing the European Court of Human Rights in the wider context of other Council of Europe activities that also promote the same ideals. As informed citizens of Europe, we all need to be aware of human rights and of the importance of maintaining and promoting them. Europe has a good story to tell about human rights and this book tells it.
With a price tag of only 6 euros, a true bargain ;)

Thursday 16 September 2010

Grand Chamber Judgment on Protection of Journalists' Sources

This week the Grand Chamber of the European Court reversed an earlier Chamber judgment in the case of Sanoma Uitgevers B.V. v. the Netherlands. The Grand Chamber found, unanimously, a violation of article 10 ECHR. The judgment can be seen as a reinforcement of the protection of journalistic sources. Note especially the consenting opinion of judge Myjer, who had voted against a violation in the earlier Chamber judgment. I am very grateful for a special and extensive guest post on the judgment by media law expert professor Dirk Voorhoof of Ghent University:

On 31 March 2009 the Chamber of the Third Section of the European Court of Human Rights (ECtHR) delivered a highly controversial judgment in the case of Sanoma Uitgevers B.V. v. the Netherlands (see also our comment here). With a 4/3 decision the Court was of the opinion that the order to hand over a CD-ROM with photographs in the possession of the editor-in-chief of a weekly magazine claiming protection of journalistic sources, did not amount to a violation of Article 10 of the European Convention of Human Rights (ECHR). The finding and motivation of the majority of the Chamber was not only strongly disapproved in the world of media and journalism, but was also firmly criticised by the dissenting judges. Inspired by the arguments of the dissenting judges, Sanoma Uitgevers B.V. requested for a referral to the Grand Chamber, this request being supported by a large number of media, NGOS advocating media freedom and professional organisations of journalists. On 14 September 2009 the panel of 5 Judges decided to refer the case to the Grand Chamber in application of Article 43 ECHR. By referring the case to the Grand Chamber the panel accepted that the Sanoma case raised a serious question affecting the interpretation or application of Article 10 ECHR and/or concerned a serious issue of general importance (Art. 43 § 2 ECHR).

Precisely one year later, the Grand Chamber of 17 judges has now, unanimously, on 14 September 2010 overruled the earlier Chamber judgment of 31 March 2009. In essence the Grand Chamber is of the opinion that the right to protect journalistic sources should be safeguarded by sufficient procedural guarantees, including the guarantee ex ante of review by a judge or other independent and impartial decision-making body, before the police or the public prosecutor have access to information capable of revealing such sources. As in the case of Sanoma Uitgevers B.V. v. The Netherlands such a guarantee was not existing, the Grand Chamber concludes, unanimously this time, that “the quality of the law was deficient in that there was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources” (§ 100). Emphasizing the importance of the protection of journalistic sources for press freedom in a democratic society the Grand Chamber of the ECtHR found a violation of Article 10 ECHR.

The facts
The applicant, Sanoma Uitgevers B.V., is a limited liability company, specialising in publishing and marketing magazines, incorporated under Dutch law and based in Hoofddorp (the Netherlands). Relying on Article 10 (freedom of expression), the company complained of having been compelled by the police authorities to hand over a CD-ROM that could reveal the identity of journalistic sources who, on the promise of anonymity, had provided information about an illegal street car race which took place in January 2002 and of which the publishing company took pictures. Despite the journalists strong objections to being forced to divulge material capable of identifying confidential sources, Sanoma was compelled to hand over the CD-ROM to the police.

The CD-ROM more precisely contained photographs, to be used for an article on illegal car racing. It was these photographs the police were interested in, investigating another crime. The police suspected that one of the cars (an Audi RS4) used in the race had also been used as the getaway car in a ram raid, during which a cash point machine was stolen and a bystander threatened with a firearm. For that reason the police tried to order Sanoma to surrender the CD-ROM containing the photographs for seizure. Sanoma first refused, in order to protect the confidentiality of their journalistic sources. The Amsterdam public prosecutor then issued the company with a summons under Article 96a of the Code of Criminal Procedure (Article 96a) to surrender the photographs and any related material concerning the race. The magazine’s editor-in-chief still refused, again invoking the journalists’ undertaking not to identify the participants. Subsequently he was arrested and brought before the Amsterdam public prosecutor. He was released a few hours later.

A short time later Sanoma Uitgevers B.V.’s lawyer obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge of Amsterdam Regional Court, who, although recognising from the outset that he had no legal competence in the matter, took the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege. The next day Sanoma finally, under protest, surrendered the CD-ROM, which was then officially seized.

Sanoma lodged a complaint before the Regional Court, seeking the lifting of the seizure and restitution of the CD-ROM, an order to the police and prosecution to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution from using information obtained through the CD-ROM. On 19 September 2002 the court granted only the request to lift the seizure and to return the CD-ROM. A few months later Sanoma’s subsequent appeal in cassation was declared inadmissible by the Supreme Court (Hoge Raad) on 3 June 2003.

The judgment of the Chamber (Third Section) of 31 March 2009
Sanoma lodged an application with the European Court of Human Rights on 1 December 2003, invoking a violation of their right to protect their journalistic sources as guaranteed under Article 10 of the Convention.

About 5 years later, on 31 March 2009, the Court found that, although in principle a compulsory handover of journalistic material might have a chilling effect on the exercise of journalistic freedom of expression, the Netherlands authorities were not prevented from balancing the conflicting interests involved in the case. In particular, the information contained on the CD-ROM had been relevant and capable of identifying the perpetrators of other crimes investigated by the police and the authorities had only used that information for those purposes. The Chamber therefore held, by four votes to three, that there had been no violation of Article 10 ECHR.

Referring to the facts of the case, the Court's majority of four judges was of the opinion that:

"58. The crimes were serious in themselves, namely the removal of cash dispensers by ramming the walls of buildings in public places with a shovel loader. Not only did they result in the loss of property but they also had at least the potential to cause physical danger to the public. At a ram raid perpetrated on 1 February 2002 the perpetrators made use of a firearm to facilitate their crime (..). It was only after the threat of potentially lethal violence was made that the police and the public prosecutor were moved to demand from the applicant company the information which was known to be in their possession.
59. The Court is satisfied that the information contained on the CD-ROM was relevant to these crimes and, in particular, capable of identifying their perpetrators.
60. Given that the participation of the suspected vehicle in the street race only became known to the police after the race had taken place, the Court is satisfied that no reasonable alternative possibility to identify the vehicle existed at any relevant time".

Although the European Court expressed some hesitations regarding the way the authorities in the Netherlands had acted in this case, the Chamber was of the opinion that there was no breach of Article 10 ECHR:

"62. Finally, the Court has had regard to the extent of judicial involvement in the case. It is disquieting that the prior involvement of an independent judge is no longer a statutory requirement (..). As it was, the public prosecutor obtained the approval of the investigating judge even without being so obliged by domestic law (..); the Court considers this, as an addition to the applicant company's entitlement under statute of review post factum of the lawfulness of the seizure by the Regional Court (..), to satisfy the requirements of Article 10 in the present case.
63. The Court is bound to agree with the Regional Court that the actions of the police and the public prosecutors were characterised by a regrettable lack of moderation (..). Even so, in the very particular circumstances of the case, the Court finds that the reasons advanced for the interference complained of were ‘relevant’ and ‘sufficient’ and ‘proportionate to the legitimate aims pursued’. There has accordingly been no violation of Article 10 of the Convention”.

Three judges firmly expressed their disagreement with the majority of the Court and argued that there has been a violation of Article 10 of the Convention (dissenting opinion of judge Power, joined by judges Gyulumyan and Ziemele).
The dissenters pointed out that the police "without any prior judicial assessment or authorisation, arrived at one of the applicant's editorial offices, ordered the editors to surrender all photographic and other materials required for an investigation, declined to give details as to the necessity for the demand, refused to entertain any objection based on journalistic undertakings of confidentiality, threatened, arrested and detained the editor in chief and further threatened to close and search all of the applicant company's premises for an entire weekend (§§ 10-13). What occurred in this case, (..) is not far removed from (and in certain respects goes beyond) the type of ‘drastic measure’ previously criticised by this Court in finding a violation of Article 10 of the Convention. The absence of any statutory requirement for prior judicial involvement in a case such as this, is (..) somewhat more than ‘disquieting’ (as the majority considers) and the actions of the police are a great deal more than ‘regrettable’ (§§ 62, 63)".

The dissenters also referred to the fact that “the distinction between a journalist's ‘sources’ and his or her ‘materials’ (such as, notes, recordings, photographs) forms part of the rationale relied upon by the majority in its finding of no violation in this case (see §§ 57, 61)” and that “ (..), great caution should be exercised before the law draws too sharp a distinction between such matters. The purpose of the legal of protection of sources is founded upon an important point of principle. This protection is granted to ensure that those who (for reasons of fear or otherwise) disclose, secretly, to journalists matters that are of public interest are not discouraged from so doing by the risk that their identities may be revealed. If legal protection is to be limited, strictly, to non-disclosure of ‘sources’ then such sources may suddenly ‘shut up’, fearful that their identities will be ascertainable once the journalist to whom confidential data has been given is no longer its sole custodian. Such a risk of indirect disclosure is likely to discourage an otherwise courageous ‘source’ from bringing matters of vital interest into the public domain. (..), it is not of pivotal significance that the intention behind a given interference is to identify evidence rather than individuals. It is the fact of interference (with its attendant risk of source identification) that undermines and weakens the worth of a journalist's undertaking. Thus, this Court imposes a high threshold of ‘necessity’ before finding that such interference can be compatible with Article 10".

The dissenters were finally of the opinion that “because of the importance of the principle at stake, the journalist should be the last, rather than the first, means of arriving at evidence required. Where, in the public interest, a pressing social need to interfere with journalistic confidentiality is asserted then the determination of whether relevant and sufficient reasons have been adduced to substantiate that claim should be made by a competent court having ‘heard’ the competing public interest. Otherwise, the police become judges in their own cause and a fundamental right protected under Article 10 of the Convention is thereby undermined to the detriment of democracy". They concluded that the actions of the police in this case were a breach of Article 10 of the Convention, formulating the warning that “in finding no violation, the majority merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe, some of whose members may, at times, be tempted to display a similar ‘regrettable lack of moderation’". The fear was expressed that this judgment would “render it almost impossible for journalists to rest secure in the knowledge that, as a matter of general legal principle, their confidential sources and the materials obtained thereby are protected at law".

Critical reactions on the Court’s judgment of 31 March 2009
The judgment of the Third Section of the ECHR was a surprising one. So far dealing with the issue of protection of journalistic sources, the ECtHR had consistently recognised that the protection of journalistic sources and materials constitutes a basic condition for press freedom, without which the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. In a series of judgments (Goodwin v. United Kingdom (no. 17488/90, 27 March 1996), Roemen and Schmit v. Luxembourg (no. 51772/99, 25 February 2003), Ernst a.o. v. Belgium (no. 33400/96, 15 July 2003), Voskuil v. The Netherlands (no. 64752/01, 22 November 2007), Tillack v. Belgium (no. 20477/05, 27 November 2007) and Financial Times Ltd. a.o. v. United Kingdom (no. 821/03, 15 December 2009)), the Court has elaborated the ‘privilege’ of protection of journalistic sources and applied it in different circumstances. In 2000 the Council of Europe’s Committee of Ministers issued Recommendation 2000/7 on the protection of journalistic sources. The Committee of Ministers reaffirmed the importance of this principle in its 2007 Declaration on the protection and promotion of investigative journalism, in which it stressed the importance of “right of journalists to protect their sources of information in accordance with Council of Europe standards”.

By introducing ambiguity concerning the statutory and procedural safeguards for the protection of journalistic sources and in not finding a violation of Article 10 the Third Section’s judgment of 31 March 2009 in Sanoma Uitgevers B.V. v. the Netherlands risked to undermine these standards. It is important to note that the Third Section’s judgment explicitly disapproved the way the Dutch authorities acted, stating that “the actions of the police and the public prosecutors were characterised by a regrettable lack of moderation” (§ 63). Furthermore, it found it “disquieting” that prior judicial authorisation is not required under Dutch law (§ 62). Nevertheless, the majority of the Third Section estimated that the informal involvement of an investigative judge and the ex post judicial review by the Regional Court remedied these shortcomings and satisfied the requirements of Article 10 ECHR.

However, there were good arguments to consider that the informal nature of the judicial authorisation in this case – a phone call – had certainly deprived Sanoma from any means of challenging the decision. Prior judicial authorisation should be a key component of any regime of safeguards for the protection of journalistic sources. Indeed it can be argued that only an order by an independent judge holds a sufficiently guarantee that the various conflicting interests will be balanced and that a disclosure order will be sufficiently fine tuned and proportionate, as was the case in the Court’s decision in Nordisk Film & TV v. Denmark (no. 40485/02, 8 December 2005).

The perception was that the Court’s judgment of 31 March 2009 in Sanoma Uitgevers B.V. v. the Netherlands risked to undermine the necessary high standards of protection of journalistic sources to the extent that it appeared to condone interference with journalistic sources without prior formal judicial scrutiny, and without proof of exhaustion of alternative sources of information. Media companies, journalists and organisations advocating investigative journalism rightly believed that if this precedent would stand, police forces and public prosecutors across Europe may consider themselves free to exercise a lack of moderation. Journalists feared finding themselves the first resort – not the last – when the authorities begin investigations into newsworthy subjects. If journalistic operations are subject to the threat of searches and seizures, and journalists are not able to fully protect their sources, this would greatly impede the media’s ability to gather and report information of public interest.

NGOs and media formulating their concern with the judgment of 31 March 2009 argued that “the Third Section’s judgment essentially sanctions interference with journalistic sources without any formal prior judicial scrutiny – or any external scrutiny. We are in no doubt that this will result in police forces or public prosecutors across Europe acting “without lack of moderation”, to the detriment of not only the individual journalist’s right to freedom of expression but the right of society as a whole to be informed on matters of public interest”. Therefore they urged that the Third Section’s judgment of 31 March 2009 was to be referred to the Grand Chamber, to bring the final judgment in this case in line with the established case law of the European Court of Human Rights regarding protection of journalistic sources, “having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom”. It was emphasized that indeed “limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court”.

The judgment of the Grand Chamber of 14 September 2010

After the decision by the panel of 5 judges on 14 September 2009 to refer the case to the Grand Chamber, the hearing took place on 6 January 2010 ( and the Court delivered its judgment on 14 September 2010.

In its judgment the Grand Chamber ‘overrules’ the finding of the Third Section by emphasizing the importance of protection of journalistic sources in the light of Article 10 ECHR. The Grand Chamber of the European Court starts from its established case law, reiterating that "the right of journalists to protect their sources is part of the freedom to “receive and impart information and ideas without interference by public authorities” protected by Article 10 of the Convention and serves as one of its important safeguards. It is a cornerstone of freedom of the press, without which sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information to the public may be adversely affected. The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest" (§ 50-51).

The crucial question the Grand Chamber needed to decide on was whether the action by the police and the public prosecutor ordering to reveal the journalistic material at issue met sufficient legal and procedural guarantees for adequate protection of journalistic sources under Article 10 of the Convention. The key question was: had the law in the Netherlands provided a sufficient procedural guarantee of this kind? In essence the Chamber in its judgment of 31 March 2009 was satisfied indeed that a statutory basis for the interference complained of existed, namely Article 96a of the Code of Criminal Procedure. While recognising that that provision did not set out a requirement of prior judicial control, the Chamber gave decisive weight to the involvement of the investigating judge in the process. Although the Chamber found it unsatisfactory that prior judicial control by the investigating judge was no longer a statutory requirement, as it had been until Article 96a entered into force, it saw no need to examine the matter further and concluded that there was no violation of Article 10.

The Grand Chamber however is of the opinion that procedural safeguards proscribed by law should inherently be part of the protection of journalistic in application of Article 10 ECHR. According to the Court “first and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body” (§ 90). The Court is of the opinion that “given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed” (§ 90). The Grand Chamber emphasizes that “the requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources' identity if it does not” (§ 90).

The Court says it is well aware that it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent orders or requests. In such situations an independent review carried out at the very least prior to the access and use of obtained materials should be sufficient to determine whether any issue of confidentiality arises, and if so, whether in the particular circumstances of the case the public interest invoked by the investigating or prosecuting authorities outweighs the general public interest of source protection. It is clear however, in the Court's view, “that the exercise of any independent review that only takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality” (§ 91). The Court continues to emphasize the necessity of the “ex ante”-character of such independent review: “Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist's sources (..). In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk” (§ 92).

The Court underlines that although the public prosecutor, like any public official, is bound by requirements of basic integrity, in terms of procedure “he or she is a “party” defending interests potentially incompatible with journalistic source protection and can hardly be seen as objective and impartial so as to make the necessary assessment of the various competing interests” (§ 93).

Furthermore the Grand Chamber is of the opinion that the involvement of the investigating judge in this case could not be considered to provide an adequate safeguard. It notes, firstly, the lack of any legal basis for the involvement of the investigating judge. Secondly, the Court points out that the investigating judge was called in what can only be described as an advisory role, as the investigating judge had no legal authority in this matter. Thus it was not open to him to issue, reject or allow a request for an order, or to qualify or limit such an order as appropriate. Such a situation is scarcely compatible with the rule of law. These failings were not cured by the review post factum offered by the Regional Court, which was likewise powerless to prevent the public prosecutor and the police from examining the photographs stored on the CD-ROM the moment it was in their possession (§ 97-99).

On these grounds the Grand Chamber reaches the conclusion that the quality of the law was deficient “in that there was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources. There has accordingly been a violation of Article 10 of the Convention in that the interference complained of was not “prescribed by law”” (§ 100).

Sanoma Uitgevers B.V. submitted a claim, supported by time-sheets, in respect of costs and expenses of EUR 117,133.15 in total, as the costs and expenses of the domestic proceedings were 49,111.15 EUR, while the claim for costs and expenses in respect of the proceedings before the Grand Chamber was 68,022.00 EUR. The Court however found that the sums claimed are not reasonable as to quantum either as regards the hourly rates applied or as regards the number of hours charged. Making its own assessment based on the information contained in the case file, the Court considers it reasonable to award EUR 35,000 in respect of costs and expenses to Sanoma Uitgevers.

It is also interesting to note the concurring opinion by the Netherlands judge Myjer, annexed to the judgment. Judge Myjer has been one of the majority of the Chamber which found no violation. In a separate concurring opinion judge Meyer explains why he now found with the majority of the Grand Chamber that there has been a violation of Article 10 ECHR. Judge Myjer inter alia referred to the remark made in the dissenting opinion appended to the Chamber judgment of 31 March 2009, emphasizing that “in finding no violation, the majority merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe, some of whose members may, at times, be tempted to display a similar 'regrettable lack of moderation'”. According to judge Myjer that was ultimately the push he needed “to be persuaded to cross the line and espouse an opinion opposite to that which I held earlier. I am bound to admit that the Grand Chamber's judgment provides clear guidance for the legislation needed and the way in which issues like these should be addressed in future”.

Impact of the judgment and future perspective

The importance and the impact of the Grand Chamber judgment of 14 September 2010 cannot be underestimated. The Court not only expects that the Netherlands’ authorities will promptly promulgate a legal basis containing the guarantees for an ex ante decision by a judge or independent and impartial body in matters of disclosure of journalistic sources. Also other member states of the European Convention will need to prescribe by law the necessary adequate safeguards in this context. The judgment of the Grand Chamber has manifestly added an extra layer of protection for journalistic sources, as until now the Committee of Ministers’ Recommendation (2000) 7 "on the right of journalists not to disclose their sources of information" (8 March 2000) only guaranteed a weaker judicial control. Indeed Principle 4 of the Recommendation stipulates that “sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the European Convention ("fair trial")”, while the explanatory memorandum of Recommendation 2000/7 went a step further prescribing that “judicial authorities ordering search or seizure of journalistic material should limit their search and seizure order with respect to the protection of a journalist's source”. The Court’s judgment of 14 September 2010 has now further clarified and developed these principles into strict procedural safeguards. There is no doubt that to be in line with the Court’s application of Article 10 ECHR in matters of protection of journalistic sources, member states shall build in additional procedural safeguards in terms of an ex ante judicial review based on clear criteria, applying a strict test of subsidiarity (reasonable alternatives do not exist or have been exhausted) and proportionality test (the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure), as already stipulated in Principles 3 and 4 of the 2000/7 Recommendation of the Committee of Ministers on the protection of journalistic sources.

Wednesday 15 September 2010

Positive Obligations in a Democracy

Rory O'Connell of Queen's University Belfast has written an article for the Northern Ireland Legal Quarterly (Vol. 61-3, 2010, pp. 263-279) on positive obligations under the right to free elections (article 3 of the first Protocol to the ECHR). The article, entitled 'Realising Political Equality: The European Court of Human Rights and Positive Obligations in a Democracy' has also been posted on SSRN. This is the abstract:

The European Convention on Human Rights (ECHR) speaks of the importance of an “effective political democracy” in its Preamble, though it is only in Article 3 of Protocol 1 (P1-3) that we find a right to free elections. This paper discusses the role of “positive obligations” under P1-3.

This paper outlines the positive obligations in P1-3 focusing on obligations where the state is required to do more than just change the law. This may mean providing resources or facilities, adopting regulatory frameworks or creating new institutions. The paper highlights specific positive obligations that need to be further developed in the jurisprudence of the European Court of Human Rights (ECtHR). Sometimes these can be developed by analogy with positive obligations recognised in other areas of ECtHR jurisprudence. However, beyond these cases, states should ensure that members of vulnerable and disadvantaged minorities are able to participate in the electoral process and should ensure that dominant political groups cannot abuse their political power to exclude other parties unfairly. This is necessary to realise equal political rights.

The second section of this paper sketches some preliminary points about the Strasbourg institutions’ approach to P1-3. After that, the third section identifies circumstances where the ECtHR should apply a more intense scrutiny in P1-3 cases. The fourth, fifth and sixth sections look at positive obligations relating to the right to vote, the right to run for election and the regulation of political parties.

Tuesday 14 September 2010

Just Satisfaction Practice

The awarding of just satisfaction and the supervision of the execution of the Court's judgments in these matters is not always very clear to outside observers. A memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights (DG-HL) of the Committee of Ministers sheds some light on this. It dates of January last year and is entitled 'Monitoring of the payment of sums awarded by way of just satisfaction: an overview of the Committee of Ministers’ present practice'. This is the Department's own introduction to the document:

In many cases, the relevant information for the payment of just satisfaction already appears in the Court's judgment.

This information, however, is not always sufficient to resolve a number of - recurrent or one-off - questions as to arrangements for the payment of just satisfaction. This led to the wish that the Secretariat draw up a document recalling the practice followed in the framework of the monitoring of the payment of just satisfaction.

This document is therefore intended to present the practice followed to date on certain points by states and the Ministers' Deputies - in the light of the solutions adopted by the Court - and to highlight the points deserving further clarification.
A helpful document, not only for the Council of Europe itself, but also for applicants and their lawyers. It helps to answer questions such as what happens if the applicant to whom satisfaction has been awarded is detained or has disappeared or is a legal entity that has been dissolved.

Monday 13 September 2010

Case Note on Sejdic and Finci

Marko Milanovic (University of Nottingham) has written a case note on the case of Sejdic and Finci v. Bosnia and Herzegovina for the American Journal of International Law (vol. 104, 2010), which he has also published on SSRN. The case, on which I reported here, concerns discriminatory provisions in the Bosnian Constitution, which is part of the Dayton peace agreement. This is the abstract of the case note:

This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society - discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court's judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.

Wednesday 8 September 2010

Article on Interim Measures

The newest issue of our own Utrecht-based Netherlands Quarterly of Human Rights has just been published (vol. 28, nr. 3, 2010). It includes an article on interim measures, comparing the experiences of the European and Inter-American human rights systems, authored by my friends Yves Haeck (SIM -Utrecht and Ghent Univ.) and Clara Burbano Herrera (Ghent Univ.): "Letting States off the Hook? The Paradox of the Legal Consequences following State Non-Compliance with Provisional Measures in the Inter-American and European Human Rights Systems". This is the abstract:

Anyone who proves that he or she is in a situation of danger and who is a potential victim of a violation of a right set forth in the American or the European Convention on Human Rights may be protected by interim measures. Interim measures in the human rights systems may be defined as an instrument, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency, which a favourable final judgment would therefore not be able to undo. They result in protection offered by the State in compliance with the legally binding order of the Inter-American or European Court on Human Rights. While this legal figure is nowadays applied more and more frequently and in most cases the American and European countries have complied with the order of their respective Court of Human Rights, the question that this contribution would like to answer is what the legal consequences of incompliance are and whether the difference as to the legal basis of the interim measures in both human rights systems has influenced the legal effect that the respective Courts have given to non-compliance with the measures. After an overview of the case-law, it the incompliance with its interim measures, but paradoxically, the effects are not directly related to the type of legal instrument in which the interim measures are contemplated. The issue is relevant because on the one hand interim measures are mostly adopted in dramatic contexts where the life and personal integrity of human beings are endangered and because a survey of the case-law shows that under the European system the cases of incompliance seem to be on the rise, and on the other hand, because it appears that under the Inter-American system there are many cases in which provisional measures have been issued which will be decided soon on the merits, and therefore during the examination of which it will be decided whether the member States have complied or not with the Inter-American Court's interim measures and what consequences incompliance entails.

Tuesday 7 September 2010

Friendly Settlements at the Court

A new book on the issue of friendly settlements in Strasbourg has just been published at OUP: Helen Keller, Magdalena Forowicz, and Lorenz Engi have written 'Friendly Settlements before the European Court of Human Rights. Theory and Practice'. It goes into both the phislophical and doctrinal underpinnings of friendly settlements as well as into selected areas of case law. This is the abstract:

The friendly settlement procedure is an important tool for the reduction of the European Court of Human Rights' (ECtHR) case load. Recent practice demonstrates that this procedure is increasingly resorted to by applicants and Contracting States. This book evaluates this largely unexplored instrument from doctrinal as well as practical perspectives, making recommendations to render the negotiations before the ECtHR more efficient and professional.

The book examines questions relating to the admissibility as well as to the practical manageability of friendly settlements. In contrast to ordinary civil proceedings, the friendly settlements procedure has a mixed legal character: while settlements are an inter-partes procedure, they are also binding under international law, as the ECtHR often hands them down in the form of a judgment. In this context, the question arises as to how far the proceedings can be 'privatised' and where the limits to the monetisation of human rights violation lie. This book evaluates possible abuses and identifies the precautions that need to be taken in the framework of friendly settlements. This issue is linked to the question of whether the legal framework which governs the conclusion of a friendly settlement should be formulated in a more concrete manner, given that the position of the parties is unequal and that the role of the Court is hardly defined in this context. Furthermore, the book empirically examines whether the friendly settlement procedure is as advantageous in comparison to ordinary proceedings as others have argued. It also questions whether the friendly settlements procedure can provide the applicant with 'more money faster'.

Monday 6 September 2010

Islam and the ECHR

Peter Danchin of the University of Maryland School of Law has posted a paper on SSRN entitled 'Islam in the Secular Nomos of the European Court of Human Rights' which analyses the Court's Article 9 jurisprudence relating to Islam. This is the abstract:

Since 2001, the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political order in Europe. These controversies raise anew two critical questions for ECHR jurisprudence: the first regarding the proper scope of the right to religious freedom; and the second regarding the conceptual relationship between religion and the public sphere internal to not only European nation-states but the supranational nomos of the Strasbourg Court itself.

The Article argues that a complex historical and normative relationship between Christianity and secularism can be seen to continue to define the modern contours and shape of the public sphere and the right to religious liberty alike and that assertions of claims of right by Muslims have thus made visible both the historical contingency and cultural particularity of these norms and forms of legal ordering. An argument is advanced which views the Court’s reasoning under Article 9 as entangled with not one but two rival liberal traditions: one dialogic which defines the right to religious liberty in strongly value pluralist terms and the public sphere in terms of social peace; the second rationalist which defines the right more narrowly in terms of autonomy and rational choice and the public sphere in terms of a particular substantive theory of justice. The Article concludes by suggesting that a better understanding of how religious freedom emerged in early modern moral and political thought will show that the second pluralist strand is deeply encoded in the logic and normative structure of Article 9 and how this may open new pathways by which to re-imagine the current limits of the Court’s jurisprudence.

Thursday 2 September 2010

More ECHR Literature

The Court is restarting its public activities this week after a summer break, with a hearing yesterday and the issuing of its first post-summer judgments later today. A good moment to give the reader an overview of a range of new ECHR-related literature:

The latest issue of the Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 70-1, 2010) is out and it includes two articles on the ECHR (in German):

* Mathias Hong, 'Hassrede und extremistische Meinungsäußerungen in der Rechtsprechung des EGMR und nach dem Wunsiedel–Beschluss des BVerfG' (on hate speech and extreme forms of freedom of expression)
* Cornelia Janik, 'Die EMRK und internationale Organisationen – Ausdehnung und Restriktion der equivalent protection–Formel in der neuen Rechtsprechung des EGMR' (on the ECHR and international organisations)

The latest issue of the European Human Rights Law Review (issue 4 of 2010) is out, which includes an article giving an overview of the procedure for electing judges at the Court:

* Andrew Drzemczewski, 'Election of Judges at the Strasbourg Court: An Overview', (pp. 377-383)

A French version of this article will appear in the journal 'L'Europe des Libertés' (of Strasbourg University) this Fall.

Routledge has published a Liber Amicorum for the great scholar and human rights expert Kevin Boyle, entitled 'Strategic Visions for human rights: Essays in Honour of Professor Kevin Boyle' which includes:

* Françoise Hampson, 'The Future of the European Court of Human Rights'

Finally, a new book is out on the challenges facing the application of the ECHR in Russia.

* Anton Burkov, 'Convention for the Protection of Human Rights in Russian Courts' (Moscow: Wolters Kluwer 2010).

The book is in Russian, but an English book chapter with the core arguments will appear later this year as: Anton Burkov, 'The European Convention for Human Rights and Fundamental Freedoms in the Russian Legal System', in: The European Convention for Human Rights and Fundamental Freedoms in Central and Eastern Europe (Eleven International Publishing). Here are parts of the abstract:

Through analysis of hundreds of interviews and judgments on the domestic use of the Convention in Russian courts, the author explores reasons for poor application of international law in Russia.

Despite the fact that the Russian constitution recognizes the domestic status of the Convention, a status that is indeed higher than that of any federal law and which commands that the Convention be applied if there is a conflict between the Convention and a national law, jurists continue to face tremendous barriers. Their efforts to obtain the recognition and the application by national courts of the norms of the Convention as well as the case-law of the ECHR are being undermined by a number of obstacles which are explicitly demonstrated by the author, as well as good examples of the Convention application by the Russian court. This book also clearly explores the specific instruments of the Russian legal system that permit the domestic application of the Convention as well as putting forward practical solutions to those obstacles. Offered as guidelines, those solutions can benefit the work of all judicial professionals and help protect the fundamental rights and freedom of Russian citizens at the national level.
Thanks to all for keeping me (and us all) updated of these and other ECHR-related literature and developments!