‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 23 October 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 weeks 42/43

13-years’ imprisonment for pouring paint over statues of Atatürk was grossly disproportionate - Murat Vural v. Turkey - The case concerned Mr Vural’s complaint about the lengthy prison sentence he had to serve for pouring paint over statues of Mustafa Kemal Atatürk, the founder of the Republic of Turkey, as a political protest. The Court found in particular that the sentence imposed upon Mr Vural was grossly disproportionate to the legitimate aim of protecting the reputation or rights of others under Article 10. Furthermore, his disenfranchisement, as an automatic consequence of his prison sentence, for more than 11 years was in breach of the right to free elections.
The Court held that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights, anda violation of Article 3 of Protocol No. 1 (right to free elections) to the Convention.
"57.  The applicant complained that his actions had been severely and disproportionately penalised and his right to freedom of expression had thus been breached.
58.  The Government, beyond disputing the applicability of Article 10 of the Convention, did not seek to argue that the interference had been justified within the meaning of Article 10 of the Convention.
59.  Interference with an applicant’s rights enshrined in Article 10 § 1 of the Convention will be found to constitute a breach of Article 10 of the Convention unless it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.
60.  The Court observes that the restriction on the applicant’s freedom of expression was based on the Law on Offences against Atatürk. As can be seen from its relevant provisions (see paragraph 31 above), it is sufficiently clear and meets the requirements of foreseeability. The Court is therefore satisfied that the interference was prescribed by law. Moreover, it considers that it can be seen as having pursued the legitimate aim of protecting the reputation or rights of others (see Odabaşı and Koçak v. Turkey, no. 50959/99, § 18, 21 February 2006; see also Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, §§ 117, 130-131, 4 March 2014). It therefore remains to be determined whether the interference complained of was “necessary in a democratic society”.
61.  The Court reiterates that its supervisory functions oblige it to pay the utmost attention to the principles characterizing a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every individual. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).
62.  This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued (ibid.). As set forth in Article 10 of the Convention, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, inter alia, Zana v. Turkey, 25 November 1997, § 51, Reports 1997‑VII).
63.  The Court has frequently held that “necessary” implies the existence of a “pressing social need” and that the Contracting States have a certain margin of appreciation in assessing whether such a need exists, but that this goes hand in hand with a European supervision (ibid.).
64.  In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, inter alia, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999‑I). In this connection, the Court reiterates that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, inter alia, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 66, ECHR 1999‑IV).
65.  The Court is aware that Atatürk, founder of the Republic of Turkey, is an iconic figure in modern Turkey (Odabaşı and Koçak, cited above, § 23), and considers that the Parliament chose to criminalise certain conduct which it must have considered would be insulting to Atatürk’s memory and damaging to the sentiments of Turkish society.
66.  Nevertheless, the Court is struck by the extreme severity of the penalty foreseen in domestic law and imposed on the applicant, that is over thirteen years of imprisonment. It also notes that as a result of that conviction the applicant has been unable to vote for over eleven years. In principle, the Court considers that peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence (see, mutatis mutandis, Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, § 43, 17 May 2011). While in the present case, the applicant’s acts involved a physical attack on property, the Court does not consider that the acts were of a gravity justifying a custodial sentence as provided for by the Law on Offences against Atatürk.
67.  Thus, having regard to the extreme harshness of the punishment imposed on the applicant, the Court deems it unnecessary to examine whether the reasons adduced for convicting and sentencing the applicant were sufficient to justify the interference with his right to freedom of expression (see Başkaya and Okçuoğlu, cited above, § 65). Nor does it deem it necessary to examine whether the applicant’s expression of his resentment towards the figure of Atatürk or his criticism of Kemalist ideology amounted to an “insult”, or whether the domestic authorities had any regard to the applicant’s freedom of expression, which he had brought to their attention on a number of occasions (see paragraphs 18 and 20 above). It considers that no reasoning can be sufficient to justify the imposition of such a severe punishment for the actions in question.
68.  In the light of the foregoing, the Court concludes that the penalties imposed on the applicant were grossly disproportionate to the legitimate aim pursued and were therefore not “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention."
Disappearance of Uzbek national; better protection required in extradition cases - Mamazhonov v. Russia  - The Court held that Russia had disregarded the interim measure (under Rule 39 of the Rules of Court) indicating that Mr Mamazhonov should not be extradited to Uzbekistan until further notice and had therefore failed to comply with its obligations under Article 34 (right of individual petition). The Russian authorities’ failure to put in place protective measures to prevent Mr Mamazhonov’s disappearance and possible transfer to Uzbekistan, together with the background of irregularities reoccurring in extradition cases against Russia, forced the Court to conclude that the authorities had, at the very least, put Mr Mamazhonov in a precarious situation and prevented him from participating in the proceedings before the European Court.
Under Article 46 (binding force and execution of judgments), the Court found it indispensable for Russia to pursue the criminal investigation into Mr Mamazhonov’s disappearance with the utmost care and to take all further measures within its competence in order to put an end to the violations found and make reparations for their consequences. It further noted that, although a recent ruling by the Russian Supreme Court could in principle allow the judiciary to provide better protection against irregularities in extradition cases, the Supreme Court itself had fallen short of applying it in Mr Mamazhonov’s case. The Court reiterated that a genuine and rigorous application of the Supreme Court’s ruling by all Russian courts was capable of improving domestic remedies in extradition and expulsion cases. The Court further decided to continue to indicate – under Rule 39 of the Rules of Court – not to expel Mr Mamazhonov until today’s judgment became final.

German courts should not have used evidence obtained by police incitement in proceedings against drug-trafficking suspect - Furcht v. Germany - The case concerned the complaint by a man convicted of drug trafficking that the criminal
proceedings against him had been unfair, as he had been incited by undercover police officers to commit the offences of which he was convicted The Court found that the undercover measure in Mr Furcht’s case – going beyond a passive investigation of criminal activity – had indeed amounted to police incitement. The German court should not have used the evidence obtained in this way to convict him.

Tax authorities and administrative courts breached the presumption of innocence principle by refusing to take account of an acquittal in criminal proceedings - Melo Tadeu v. Portugal - The case concerned a tax enforcement procedure initiated against Ms Melo Tadeu to collect a tax debt owed by a company of which she was regarded as de facto manager, the procedure having continued in spite of her acquittal in criminal proceedings for tax fraud and having resulted in the attachment of a shareholding interest that she held in another company. The Court found in particular that the tax authorities and the administrative courts hearing the case had disregarded Ms Melo Tadeu’s acquittal in criminal proceedings, thus casting doubt on the wellfoundedness of her acquittal in a manner that was incompatible with her right to be presumed innocent. The Court also held that, by refusing to release from attachment Ms Melo Tadeu’s interest in another company, in spite of her acquittal in criminal proceedings, the Portuguese authorities had failed to strike a fair balance between the protection of Ms Melo Tadeu’s right to the enjoyment of her possessions and the requirements of the general interest. 

Assistance by an interpreter must be guaranteed from the investigation stage onwards - Baytar v. Turkey. The case concerned the questioning in police custody, without the assistance of an interpreter, of an individual who did not have a sufficient command of the national language. The Court found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, Ms Baytar had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance.
Violation of Article 6 § 3 e) (right to the assistance of an interpreter) taken together with Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

Journalist reporting on sexual abuse case should not have been found guilty of defamation - Erla Hlynsdottir v. Iceland (no. 2) - The case concerned the complaint by a journalist of having been found liable for defamation following the publication in 2007 of an article about a high-profile criminal case involving the director of a rehabilitation centre and his wife, who were suspected of sexual abuse. The Court found in particular that the Icelandic courts had not based their judgment on relevant and sufficient grounds demonstrating that Ms Hlynsdóttir had acted in bad faith. In particular, they had rejected the defamation claim in respect of a number of statements concerning the activities of the claimant (the director’s wife), leaving it unclear why the statement found to be defamatory could be read as an allusion to a crime. Violation of Article 10 (freedom of expression) of the European Convention on Human Rights

Indiscriminate collective expulsion by the Italian authorities of Afghan migrants, who were then deprived of access to the asylum procedure in Greece - Sharifi and Others v. Italy - The case concerned 32 Afghan nationals, two Sudanese nationals and one Eritrean national, who alleged, in particular that they had entered Italy illegally from Greece and been returned to that country immediately, with the fear of subsequent deportation to their respective countries of origin, where they faced the risk of death, torture or inhuman or degrading treatment. Violations of Articles 13 (right to an effective remedy) combined with Article 3 (prohibition of inhuman or regarding treatment) of the European Convention on Human Rights abd 4 of Protocol No. 4 (prohibition of collective expulsion of aliens.

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