Friday, 26 April 2024
New Book: 'European Human Rights Grey Zones'
Thursday, 25 April 2024
New Judges Elected
Wednesday, 24 April 2024
Recording of Climate Cases Webinar
Tuesday, 23 April 2024
New Session of MOOC on ECHR Starts Again on 4 May
Monday, 15 April 2024
ECHR Blog Special Webinar: Climate Change in Strasbourg
Friday, 12 April 2024
The Northern Ireland Amnesty Act under Scrutiny in Strasbourg
On 17 January 2024, Ireland submitted a new inter-state application (no. 1859/24) against the United Kingdom before the European Court of Human Rights under Article 33 ECHR. The case concerns the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, adopted by the United Kingdom on 18 September 2023.
The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023
The establishment of the Independent Commission for Reconciliation and Information Recovery (ICRIR) under the Act would replace the methods for criminal and civil investigations currently in place. According to Section 2 of the Act, the ICRIR is established inter alia to conduct investigations into crimes that were committed during the period of the Troubles and to determine whether to grant individuals an amnesty for criminal prosecutions for ‘serious or connected Troubles-related offences other than Troubles-related sexual offences’. Section 1(5)(b) of the Act provides that a Troubles-related offence is ‘serious’ if it consists of the following acts: murder, manslaughter, culpable homicide, other offences committed by causing the death of a person, or offences committed by causing the suffering of serious physical or mental harm. One of the most controversial provisions in the Act is Section 19 entitled ‘Immunity from prosecution’. This section stipulates that the ICRIR has the power to grant an individual immunity from criminal investigation and prosecution for serious or connected Troubles-related offences if the individual cooperates with the ICRIR (conditional amnesty). It follows from Section 39 of the Act that no criminal enforcement action can be taken against individuals who have been granted an amnesty under Section 19 of the Act. The key question this raises is whether Sections 19 and 39 of the Northern Ireland Troubles Legacy and Reconciliation act breach the procedural limbs of Articles 2 (the right to life) and 3 (prohibition of torture or inhuman or degrading treatment) of the Convention.
Amnesties and the ECHR
Several scholarly contributions of the last few years have focused on the issue of the compatibility of amnesties with the Convention (see here, here and here). Most of these argue that the Court’s position on the permissibility of amnesty laws under the Convention is not entirely clear. The Court has not (yet) conducted a direct judicial review of amnesty laws. However, the Court has developed a rich jurisprudence on the procedural obligations of States to investigate and prosecute violations of Articles 2 and 3, and in a few judgments it has made some general remarks on the legality of amnesties from criminal prosecution.
Next to this line of case law, in the few judgments in which the Court has considered the issue of amnesties, it seems that under certain circumstances the Court leaves the door open for amnesties. As regards alleged violations of the right to life under Article 2 ECHR, in its admissibility decision in Dujardin and Others v. France in [1991], the former European Commission of Human Rights held that:
In later judgments, such as in the case of Tarbuk v. Croatia, the Court reiterated the Commission’s position adopted in the Dujardin case. This statement suggests that amnesty laws, even for violations of the right to life, may be permissible subject to the condition that they are necessary to achieve legitimate ends and as long as a fair balance is struck between the interests of the state and individual members of society.
‘Admittedly, the possibility of a conflict arising between, on the one hand, the need to prosecute criminals and, on the other hand, a country’s determination to promote reconciliation in society cannot, generally speaking, be ruled out.’ (p. 17)
According to scholars such as Miles Jackson (see here) and Louise Mallinder (see here), the Courts’ position on amnesties for violations of the prohibition of torture or inhuman and degrading treatment and other human rights violations that can be considered as international crimes is stricter. In the case of Marguš v Croatia in [2014], the Court held:
Even though the language used by the Court in Marguš is less absolute compared to its pronouncements in Dujardin and Tarbuk, the Court seems to leave some degree of flexibility to states to enact amnesties even for the most grave human rights violations. However, it has narrowed the permissibility of amnesties by stating that amnesties for gross human rights violations may be allowed only in particular circumstances, such as a reconciliation process or compensation to the victims of the violation.
Parallel to the current inter-state application, domestic proceedings in the UK have also been ongoing, on 28 February 2024, in a case filed by a number of relatives of victims of Trouble-era crimes, the High Court of Justice in Belfast ruled that Section 19 of the Act violates Articles 2 and 3 ECHR because it prevents the prosecution of grave breaches of fundamental rights and does not contribute to reconciliation in Northern Ireland. In the High Court’s words:
Conclusion
Thus, in the current inter-state case, in scrutinizing the compatibility of the immunity provisions of Northern Ireland Amnesty Act the Court will have to determine, among other things, whether the Act prevents effective investigations into crimes committed during the Troubles-era, whether the amnesty is necessary to achieve legitimate aims, whether the amnesty contributes to reconciliation and/or whether the amnesty is accompanied by remedies for victims.
* Matilda Radoš is Lecturer and PhD Candidate in international human rights law at Utrecht University. She is assistant editor of the ECHR blog.
Wednesday, 10 April 2024
Danileţ v. Romania: A Plea for Judges' Freedom of Expression
Introduction
In the case no.16915/21, Danileţ v. Romania, the European Court of Human Rights held on February 20, 2024, by a majority (four votes to three), that there had been a violation of Article 10 of the European Convention on Human Rights and the sanction imposed on the judge for Facebook posts concerning matters of public interest infringed his freedom of expression.
The case concerns the limits of freedom of expression in the situation of a judge who, at the time of the facts, held neither the position of president of any supreme court nor a member of a judicial council, nor the position of representative of a professional association. From this point of view, the ECtHR decision seems to bring some jurisprudential clarifications. We will present below the main lines of the Court's reasoning, aspects related to the situation of Romanian judges regarding the freedom of expression and the inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice, as well as the need to avoid the direct intimidation or silencing of judges.
Facts
At the relevant time, Cristi Danileţ was a judge at Cluj County Court and he was well known for actively taking part in debates and enjoyed a certain nationwide renown in Romania. In January 2019, he posted two messages on his publicly accessible Facebook page, which had roughly 50,000 followers, and for which, in May of that year, the Superior Council of Magistracy (SCM) imposed a disciplinary penalty on him, consisting in a 5% pay cut for two months and based its decision on Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors.
As to the first message, which was republished and commented on by numerous media followers, the SCM found that Cristi Danileţ had – unequivocally and before thousands of readers – cast doubt on the credibility of public institutions, insinuating that they were controlled by the political class and proposing as a solution that the army intervene to ensure constitutional democracy. It considered that Cristi Danileţ had impaired the honour and good reputation of the judiciary, and that he had breached his duty of restraint in a manner that had been able to tarnish the good reputation of the judiciary.
In his second message, Danileţ had posted on his Facebook page a hyperlink to an article in the press entitled “A prosecutor sounds the alarm. Living in Romania today represents a huge risk. The red line has been crossed when it comes to the judiciary” and had published a comment praising the courage of the prosecutor in question taking into account that he dared to speak openly about the release of dangerous inmates, about the catastrophic initiatives to amend the Justice laws on the way the judicial system was organised, and about the verbal attacks against judges. The SCM considered that the language used in Judge Danileţ’s published comment had overstepped the limits of decency and had been unworthy of a judge.
In May 2020, the High Court of Cassation and Justice dismissed Judge Danileţ’s appeal and upheld the SCM’s decision.
The Court’s Judgment
The European Court of Human Rights found that the domestic courts had failed to give due consideration to several important factors, in particular concerning the broader context in which the applicant’s statements had been made, his participation in a debate on matters of public interest, the question whether the value judgments expressed had been sufficiently based on facts and, lastly, the potentially chilling effect of the sanction. In addition, the existence of an attack on the dignity and honour of the profession of judge had not been sufficiently demonstrated.
According to the European Court, the domestic courts had not granted the applicant’s freedom of expression the weight and importance such a freedom was due in the light of the Court’s case-law, even though a means of communication had been used (namely a publicly accessible Facebook account) that might have raised legitimate questions with regard to judges’ compliance with their duty of restraint (para.82). Consequently, the Romanian courts had not given relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression (para.83).
Regarding the first message, the Court found that it contained criticism of the political influences to which certain institutions were allegedly subject, namely the police, the judiciary and the army. The applicant had referred to the constitutional provisions under which the army was subject to the will of the people and contemplated the risk of any form of political control over that institution. Through the use of rhetorical questions, he invited his readers to imagine the army acting against the will of the people, someday, under the pretext of protecting democracy. In his view, this was a mere detail behind which lay a more serious problem. Resituated in their proper context, the applicant’s statements amounted to value judgments to the effect that there would be a danger to constitutional democracy in the event that public institutions fell once more under political control. Those statements therefore concerned matters of public interest relating to the separation of powers and the need to preserve the independence of the institutions of a democratic State (para.68-71).
Regarding the second message, the Court considered that the applicant’s position clearly fell within the context of a debate on matters of public interest, as it concerned legislative reforms affecting the judicial system (para.72).
The Court took the view, concerning both the second and first messages, that any interference with the freedom to impart or receive information ought to have been subject to strict scrutiny, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State in such cases.
That being stated, the Court reasserted the principle that it could be expected from judges that they should show restraint in exercising their freedom of expression, as the authority and impartiality of the judiciary were likely to be called in question. However, the statements at issue were not clearly unlawful, defamatory, and hateful or calls to violence (para.79).
The Court attached significant weight to the fact that the national courts had chosen not to impose the least severe sanction on the applicant (which, at the relevant time, was a warning), which had undoubtedly a “chilling effect”, discouraging not only the applicant himself, but other judges as well, from taking part, in the future, in the public debate on matters concerning the separation of powers or the legislative reforms affecting the courts and, more generally, on matters pertaining to the independence of the judiciary (para.80).
The Court concluded that, in weighting up the competing interests at stake, the domestic courts had failed to give due consideration to several important factors, and had not provided relevant and sufficient reasons to justify the alleged interference with the applicant’s right to freedom of expression.
Judge Rădulețu expressed a concurring opinion, considering that, in the absence of case law establishing clear and predictable rules as to the extent of judges’ duty of discretion in this type of situation, in the presence of a subject of general interest and especially in the absence of a balancing of competing interests by the national courts (the first called upon to carry out this exercise), the protection of the applicant’s freedom of expression must prevail.
Judges Kucsko-Stadlmayer, Eicke and Bormann expressed a joint dissenting opinion. They emphasized that national authorities are in principle best placed to assess the impact of the language used in the particular context of their country and society and the decision to sanction the applicant fell within the general margin of appreciation by which the proportionality of an interference is measured.
The situation of Romanian judges regarding the freedom of expression
Romania has a legal and professional tradition of judicial silence, and judges were expected to absolutely refrain from manifesting any form of political beliefs. Judges are prohibited from any negative comments on the professional and moral integrity of their colleagues. Ideas or orientations that might suggest a connection to a party or to partisan structures must not be expressed on social media. Judges are also prohibited from supporting, promoting or evaluating in any manner campaigns, pages or posts by activists or groups, if this were to bring the judiciary into disrepute. The law is not sufficiently precise.
The successive amendments to the laws of judiciary in Romania have attracted the attention of the Venice Commission (see Opinion No. 924/2018, and Opinion No. 950/2019), and of the Group of States against corruption Group of States against corruption.
Since 2018, the Judicial Inspectorate (an autonomous entity that is part of the SCM), launched dozens of disciplinary proceedings against activist judges and prosecutors. All these disciplinary investigations were based on the provisions of Article 99(a) of Law no. 303/2004 on the status of judges and prosecutors: „There are disciplinary offenses: the conduct that has a negative impact on the professional honor or probity or the prestige of justice, committed in the exercise or outside the exercise of the official competences”. It is possible to start the investigation on this ground if mass-media write something against a judge or if the spokesperson from Judicial Inspectorate finds an improper post on social media even if no one is making a complaint on this. There have even been some instances when Pthe resident of the SCM demanded the Judicial Inspectorate to start an investigation and that ame President was a member in the subsequent disciplinary Panel of the SCM in the case.
In its judgment of 11 May 2023 in Case C-817/21, Inspecția Judiciară, the Court of Justice of the European Union that the powers of the Judicial Inspectorate were used on several occasions for the purpose of political scrutiny of judicial activity. Examples included preventive suspension from office until the completion of disciplinary investigations against judges from the associations of judges and prosecutors who criticised regressive judicial reforms of the 2017-2019 period and/or who submitted requests for preliminary rulings to the Court of Justice of the European Union. Even after this European confirmed the political control of judicial activity in Romania, carried out through the Judicial Inspectorate, the SCM did not react.
In 2021, more than 500 judges and prosecutors signed an open letter addressed to the SCM and Minister of Justice, requesting to repeal Article 99(a) of the Law no.303/2004. The letter raised concerns about arbitrary interpretations of the law, because there are no minimum criteria, details or clarifications, in order to establish, in a transparent and justified manner, the conduct of magistrates which violate honor and professional probity. In spite of some minor reforms in the years since, there is no provision in the new laws on the judiciary to stop the harassment of ‘inconvenient’ judges and prosecutors.
Inadequate protection of opinions expressed by judges, individually, in relation to the proper functioning of justice
The Bangalore Principles of Judicial Conduct emphasize the right of every judge to free expression and opinion, to freedom of association, as well as to freedom of belief, while respecting the dignity of the judicial office, so that neither its independence nor impartiality is prejudiced. At the same time, judicial independence is a value that must be defended both from within, by legal professionals, and from without, by civil society, and when democracy and fundamental freedoms are at risk, the judge's duty of reserve becomes subsidiary to the duty of indignation.
The opinions expressed by judges in relation to the proper functioning of justice, a matter of public interest, are conventionally protected, even if they have political implications, as judges cannot be prevented from getting involved in the debate on these subjects. The fear of sanctions can have a dissuasive effect on judges to express their views on other public institutions or public policies. This chilling effect manifests itself to the detriment of society as a whole. As the Court has held, “even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter. Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate” (ECtHR, Baka v. Hungary, para.165).
The existence and activities of professional associations related to the field of justice were and are necessary to increase the efficiency, transparency and quality of the judiciary. Consequently, the presidents of professional associations of magistrates have not only the right, but also the obligation to formulate points of view on matters related to the functioning of justice. The Court’s case-law indeed protects the freedom of opinion related to the functioning of the judicial system, especially in the case of magistrates with high positions (for example, members of councils of the judiciary, presidents of supreme courts, general prosecutors, etc.) or those who represent associations as legally established professionals.
In Cristi Danilet’s case, domestic authorities should have taken account of his past capacity as a member of the Romanian SCM (in the period 2011-2016) and his subsequent permanent activity as an integrity whistleblower and expert commentator on the functioning of the judiciary. Disregarding these calls into question a legitimate and extremely necessary aspect: protecting the expressed opinions of judges when democracy and fundamental freedoms are at risk.
Conclusion
Of course, the judiciary should not be imagined as a silent body, in which only the heads of courts or prosecutors' offices or the representatives of judges and prosecutors constituted in professional associations can open their mouths, the others being condemned ab initio to a perpetual silence. A judge is a member of society and from this position, cannot be forced to live in a bubble, disconnected from social realities. In a former communist society, in which civic attitude is not yet developed, and the public opinion does not immediately react to slippages of the executive against democracy or the independence of the judiciary, judges and prosecutors should be allowed to express their opinion on these subjects as long as impartiality in the performance of their duties is not affected.
As Opinion No.3 of the Consultative Council of European Judges states, “judges should be allowed to take part in certain debates regarding the national legal policy. They must be able to be consulted and play an active role in the preparation of legislation regarding their status and, more generally, the functioning of the judicial system” (para. 34). Indeed, it is crucial that each magistrate, taken individually, can express opinions regarding the functioning of justice, at least in situations where democracy and fundamental freedoms are endangered.
The direct intimidation or silencing of judges could turn the judiciary into a giant with feet of clay, passive, and without words, represent the greatest danger related to the independent functioning of the judiciary. Countering these trends across Europe is crucial for democracy. The Court’s recent judgment in Danileţ v. Romania seems to be a good start in this regard.
Tuesday, 9 April 2024
Climate Cases Decided Today: Small Step or Huge Leap?
"415. The Court’s existing case‑law in environmental matters concerns situations involving specific sources from which environmental harm emanates. Accordingly, those exposed to that particular harm can be localised and identified with a reasonable degree of certainty, and the existence of a causal link between an identifiable source of harm and the actual harmful effects on groups of individuals is generally determinable. Furthermore, the measures taken, or omitted, with a view to reducing the impugned harm emanating from a given source, whether at the regulatory level or in terms of implementation, can also be specifically identified. In short, there is a nexus between a source of harm and those affected by the harm, and the requisite mitigation measures may be identifiable and available to be applied at the source of the harm. "
Two margins of appreciation and positive obligations
What is really notable is that the Court explicitly distinguishes different margins of appreciation for states in relation to climate change. While there is a wide margin of appreciation in terms of how to tackle climate change (choice of policies etc.), the margin is reduced in terms of "the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect", because of the "nature and gravity of the threat" and the consensus among states to achieve carbon neutrality (para. 543). And in achieving a fair balance in terms of positive obligations under the Convention, "climate protection should carry considerable weight in the weighing-up of any competing considerations" (para. 542). These are really important and principled pronouncements by the Court today.
As second key step is that the Court recognises for the first time that the ECHR entails positive obligations for states in the context of climate change, namely "to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change" (para. 545). More concretely this entails putting "in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention" (para. 546). And it includes archiving carbon neutrality within the next three decades (para. 548) in order to comply with Article 8!
In the specific case of Switzerland, it failed to comply with Article 8. As the Court concluded (para. 573), there were:
"critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets. By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context."
“537: (...) appropriate to examine the applicant association’s complaint from the angle of Article 8 alone… in its case-law analysis below it will have regard to the principles developed also under Article 2, which to a very large extent are similar to those under Article 8 and which, when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions”
"635. The Court is not persuaded by the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit (see paragraphs 56‑59 above). This was not based on sufficient examination of the scientific evidence concerning climate change, which was already available at the relevant time, as well as the general acceptance that there is urgency as regards the existing and inevitable future impacts of climate change on various aspects of human rights (see paragraph 436 above; see also paragraph 337 above as regards the respondent Government’s acceptance that there was a climate emergency). Indeed, the existing evidence and the scientific findings on the urgency of addressing the adverse effects of climate change, including the grave risk of their inevitability and their irreversibility, suggest that there was a pressing need to ensure the legal protection of human rights as regards the authorities’ allegedly inadequate action to tackle climate change." [our emphasis]
"629. the Court considers it essential to emphasise the key role which domestic courts have played and will play in climate-change litigation, a fact reflected in the case‑law adopted to date in certain Council of Europe member States, highlighting the importance of access to justice in this field. Furthermore, given the principles of shared responsibility and subsidiarity, it falls primarily to national authorities, including the courts, to ensure that Convention obligations are observed."
"657. (...) having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment. Given the differentiated margin of appreciation accorded to the State in this area, the Court considers that the respondent State, with the assistance of the Committee of Ministers, is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State, the adoption of measures aimed at ensuring that the domestic authorities comply with Convention requirements, as clarified in the present judgment."
"83. (...) the Court does not consider that for the purposes of any potentially relevant aspect of Article 8 – private life, family life or home – he can claim to have victim status under Article 34 of the Convention as regards the alleged risks linked to climate change threatening that municipality. This is true irrespective of the status he invoked, namely that of a citizen or former resident of that municipality. The same considerations apply as regards the applicant’s complaint under Article 2 of the Convention.84. Holding otherwise, and given the fact that almost anyone could have a legitimate reason to feel some form of anxiety linked to the risks of the adverse effects of climate change in the future, would make it difficult to delineate the actio popularis protection – not permitted in the Convention system – from situations where there is a pressing need to ensure an applicant’s individual protection from the harm which the effects of climate change may have on the enjoyment of their human rights."
"192. First, States have ultimate control over public and private activities based on their territories that produce GHG emissions. In this connection, they have undertaken certain international-law commitments, notably those set out in the Paris Agreement, which they have developed in their domestic laws and policy documents as well as in their Nationally Determined Contributions (“NDC”) under the Paris Agreement. Moreover, as set out in Verein KlimaSeniorinnen Schweiz and Others (cited above, §§ 544-554), certain positive obligations arise under the Convention as regards climate change.193. Secondly, albeit complex and multi-layered, there is a certain causal relationship between public and private activities based on a State’s territories that produce GHG emissions and the adverse impact on the rights and well-being of people residing outside its borders and thus outside the remit of that State’s democratic process. Climate change is a global phenomenon, and each State bears its share of responsibility for the global challenges generated by climate change and has a role to play in finding appropriate solutions.194. Thirdly, the problem of climate change is of a truly existential nature for humankind, in a way that sets it apart from other cause-and-effect situations. More fossil fuels being extracted or burnt anywhere in the world, beyond what can be offset by natural carbon sinks (net zero), will inevitably lead to higher GHG concentrations in the atmosphere and therefore to worsening the effects of climate change globally.195. However, the Court finds that these considerations cannot in themselves serve as a basis for creating by way of judicial interpretation a novel ground for extraterritorial jurisdiction or as justification for expanding on the existing ones. It will now proceed to address the other arguments put forward by the applicants as a basis for justifying an extension of extraterritorial jurisdiction."