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

Thursday, 4 December 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 49


Blanket immunity for former President of Moldova in defamation proceedings against him breached the ConventionUrechean and Pavlicenco v. the Republic of Moldova -This is the first occasion on which the Court has had to address the immunity from civil suit from which the president of a country benefits, as opposed to such immunity for members of parliament - Violation of Article 6 § 1 (right of access to court) of the European Convention on Human Rights.

The two applicants, politicians of opposition parties, complained that they could not bring libel actions against the then president of their country on account of his immunity. The Moldovan courts held that the President of the Republic enjoyed immunity and could not be held liable for opinions which he expressed in the exercise of his mandate. The Court found that, in the circumstances of the applicants’ case, a fair balance had not been struck between the competing interests involved, namely between the public’s interest in protecting the President’s freedom of speech in the exercise of his functions and the applicants’ interest in having access to a court to obtain a reasoned answer to their complaints. In particular, the Moldovan courts had not addressed the question of whether the then President of Moldova had made the statements about the applicants in the exercise of his mandate. Nor did the relevant constitutional provision define the limits of presidential immunity in libel actions. That provision was therefore both absolute and perpetual in that the President could not be held liable after he left office. The Court considered that conferring such blanket immunity on the Head of State in the application of the rule of immunity was to be avoided:
"39.  The right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999‑I). The right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Tsalkitzis v. Greece, no. 11801/04, § 44, 16 November 2006).
40.  The Court has been called to examine many cases concerning limitation of the right of access to a court by operation of parliamentary immunity. The general principles applied in those cases are relevant in the present case too.

41.  The Court held in the context of parliamentary immunity that when a State affords immunity to its MPs, the protection of fundamental rights may be affected. That does not mean, however, that parliamentary immunity can be regarded in principle as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the Contracting States as part of the doctrine of parliamentary immunity (see A. v. the United Kingdom, no. 35373/97, § 83, ECHR 2002‑X).

42.  The Court has already acknowledged that the long-standing practice for States generally to confer varying degrees of immunity on parliamentarians pursues the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary (see A. v. the United Kingdom, cited above, §§ 75-78; Cordova v. Italy (no. 1), no. 40877/98, § 55, ECHR 2003‑I; Cordova v. Italy (no. 2), no. 45649/99, § 56, ECHR 2003‑I; and De Jorio v. Italy, no. 73936/01, § 49, 3 June 2004). Different forms of parliamentary immunity may indeed serve to protect the effective political democracy that constitutes one of the cornerstones of the Convention system, particularly where they protect the autonomy of the legislature and the parliamentary opposition.

43.  The Court further noted that the regulation of parliamentary immunity belonged to the realm of parliamentary law, in which a wide margin of appreciation was left to member States. That being so, the creation of exceptions to parliamentary immunity, the application of which depended upon the individual facts of any particular case, would seriously undermine the legitimate aims pursued (see A. v. the United Kingdom, cited above, § 88).

44.  However, from the point of view of its compatibility with the Convention, the broader an immunity, the more compelling must be its justification (ibid., § 78). Indeed, the lack of any clear connection with parliamentary activity requires the Court to adopt a narrow interpretation of the concept of proportionality between the aim sought to be achieved and the means employed. This is particularly so where the restrictions on the right of access stem from the resolution of a political body (see Tsalkitzis, cited above, § 49). Thus, where a personal quarrel was involved it would not be right to deny someone access to a court purely on the basis that the quarrel might be political in nature or connected with political activities (see Cordova (no. 1), cited above, § 62; Cordova (no. 2), cited above, § 63; and De Jorio, cited above, § 53).


53.  The lack of alternative means of redress is another issue to be considered by the Court. The Government submitted that the applicants, being politicians, should have resorted to the media to express their points of view on the President’s allegations about them. The second applicant replied that she had made an attempt to obtain airtime from the channel on which the head of State had made the impugned statements, but to no avail.

54.  In this latter connection, the Court considers relevant its findings in Manole and Others v. Moldova (no. 13936/02, §8, ECHR 2009), which provided that at the material time there were only two television channels with national coverage in Moldova, one of which was involved in the present case and refused to offer airtime to one of the applicants, the other being State television. In view of that, and of the findings in Manole and others concerning the administrative practice of censorship on State television, the Court is not persuaded that the applicants had at their disposal an effective means of countering the accusations made against them by the head of State at a prime-time hour on a television channel with national coverage, even from the parliamentary tribune.

55.  For the above reasons, the Court concludes that the manner in which the immunity rule was applied in the instant case constituted a disproportionate restriction on the applicants’ right of access to a court. There has accordingly been a violation of Article 6 § 1 of the Convention."
Judges Šikuta, Pardalos and Griţco expressed a joint dissenting opinion which is annexed to the judgment.

The publication of a parliamentary investigation into a politician allegedly seeking financial reward in exchange for his influence was justified - Hoon v. the United Kingdom - The case concerned the investigation into Mr Hoon’s conduct by parliamentary authorities after he had been involved in an undercover ‘sting’ operation by a journalist posing as a prospective business associate. Mr Hoon was found to have brought Parliament into disrepute for having allegedly offered his parliamentary expertise to external commercial interests in exchange for financial reward. The Court found that the parliamentary proceedings in question did not attract the application of the right to a fair trial because they did not determine or give rise to a dispute as the applicant’s civil rights. It considered that the parliamentary investigation and report, whose principal sanction was negative publicity for Mr Hoon, was published because there was a legitimate public interest in knowing the outcome of the investigation and the complaint about the applicant’s conduct as an MP.

Suspects of piracy against French vessels, apprehended in Somalia by the French authorities, should have been brought before a legal authority as soon as they arrived in France - Ali Samatar and Others v. France and Hassan and Others v. France - These two cases concerned ten Somali nationals, who, having hijacked French-registered vessels off the coast of Somalia were arrested and held by the French army, then transferred to France, where they were taken into police custody and prosecuted for acts of piracy. Violation of Article 5 § 1 (right to liberty and security) and Article 5 § 3 (right to liberty and security.

Dismissal of a security officer because she was a woman was discriminatoryEmel Boyraz v. Turkey - Violations of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right for respect to private and family life) and article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention - The case concerned a dismissal from public sector employment – a State-run electricity company – on grounds of gender. Ms Boyraz, the applicant, had worked as a security officer for almost three years before being dismissed in March 2004 because she was not a man and had not completed military service. 
Criminal conviction of participants in a religious service organised in memory of deceased members of the PKK terrorist organization infringed the Convention - case of Güler and Uğur v. Turkey -  violation of Article 9 (right to freedom of thought, conscience and religion) of the Convention - The case concerned the applicants’ conviction for propaganda promoting a terrorist organisation on account of their participation in a religious service organised on the premises of a political party in memory of three members of an illegal organisation (the PKK) who had been killed by security forces. 

Denying the Alevi community exemption from electricity bills – granted to places of worship – was discriminatory - case of Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfi v. Turkey - violation of Article 14 (prohibition of discrimination) taken together with Article 9 (freedom of thought, conscience and religion) of the Convention - The case concerned the possibility under Turkish law for places of worship to be granted an exemption from paying electricity bills and the refusal to grant this privilege to the applicant foundation. The Court found in particular that the applicant foundation had sustained a difference in treatment without any objective or reasonable justification, and that the system for granting exemptions from payment of electricity bills for places of worship under Turkish law entailed discrimination on the ground of religion.

Disproportionate sanction against Russian opposition activists for participating in spontaneous demonstration - Navalnyy and Yashin v. Russia - Violations of Article 11 (freedom of assembly and association), Article 6 § 1 (right to a fair trial); Article 3 (prohibition of inhuman or degrading treatment) alone and in conjunction with Article 13 (right to an effective remedy) - The case concerned the arrest of two well-known opposition leaders at a demonstration in December 2011, their subsequent detention and their conviction of an administrative offence.
Inability to obtain an identity document on account of failure to pay maintenance entailed a violation of the ConventionBattista v. Italy - violation of Article 2 of Protocol No. 4 (freedom of movement) to the Convention - The case concerned the fact that it was impossible for Mr Battista, the applicant, to obtain a passport or an identity card valid for travel abroad on account of his failure to pay maintenance for his children. 

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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