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

Thursday, 15 January 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - weeks 1-3


Russian courts were justified in dismissing a defamation claim brought by Joseph Stalin’s grandson against Novaya Gazeta newspaper - case of Dzhugashvili v. Russia declared inadmissible - The case concerned articles published by the Novaya Gazeta newspaper about the shooting of Polish prisoners of war in Katyń in 1940 and the role which the former Soviet leaders had allegedly played in the tragedy. The applicant, the grandson of the former Soviet leader, Joseph Stalin, sued the newspaper for defamation of his grandfather, without success. The Court held, in particular, that the Novaya Gazeta articles concerned an event of significant historical importance and that both the event and historical figures involved, such as the applicant’s grandfather, inevitably remain open to public scrutiny and criticism. It also found that the Russian courts, taking into account the European Court’s case law, had carefully balanced the competing interests of journalistic expression and the applicant’s right to respect for his private life and that of his grandfather.

"20.  The applicant complained under Articles 6, 10 and 14 that the domestic courts had approved of his ancestor’s slander. The Court, being the master of the characterisation to be given in law to the facts of the case, does not consider itself bound by the legal characterisation given by the applicant (see Guerra and Others v. Italy, no. 14967/89, § 44, 19 February 1998). It finds that the applicant’s allegations should be examined as in essence relating to an alleged breach of his rights under Article 8 of the Convention, which reads as follows:“1.  Everyone has the right to respect for his private and family life, his home and his correspondence. 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”  
21.  The complaint is twofold. In so far as the applicant can be understood to be complaining of a violation of the Convention rights of his grandfather, the Court will first examine the applicant’s locus standi in this respect.
22.  In the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000-XI) the applicant, as the heir of a deceased person, was complaining on behalf of the latter in respect of his claims for recognition of the right to die in dignity. The Court considered that the right claimed under Article 8 of the Convention, even assuming that such a right existed, was of an eminently personal nature and belonged to the category of non‑transferable rights.
23.  The Court confirmed the principle that Article 8 rights were non‑transferable when it refused a universal legatee to pursue an application lodged by the immediate victim in the case of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006).
24.  The Court does not find sufficient reasons to depart from its established case-law in the instant case. It follows that the applicant does not have the legal standing to rely on his grandfather’s rights under Article 8 of the Convention because of their non-transferable nature.
25.  It follows that this part of the complaint is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention.
26.  As to whether the applicant’s own right to respect for his private and family life are at stake in the instant case, the Court will proceed with the examination of whether the two above-mentioned disputes and the way in which they were resolved by the domestic courts affected the applicant’s own private and family life and, if so, whether the State took such measures as to secure effective respect of the latter.
27.  In its recent case-law the Court has accepted that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8 (see Putistin v. Ukraine, no. 16882/03, §§ 33, 39, 21 November 2013, where a publication in the mass media allegedly provoked the presupposition that the applicant’s father had been a Gestapo collaborator).
28.  Turning to the facts of the present case, the Court notes at the outset that both publications did, in the end, relate to the applicant’s grandfather either directly or indirectly. However, the Court is not ready to draw a parallel with the Putistin case for the following reasons.
29.  Unlike the present case, which is to a certain extent focused on the reputation of a world-famed public figure, the Putistin case dealt with the reputation of a private person – a former football player and by fate a participant in the so-called “Death Match” of 1942 (see the historical background in Putistin v. Ukraine, cited above, § 7), whose role in the relevant events was not the leading one but rather one of an ordinary participant. Moreover, his involvement was not a direct consequence of his political, military or other public career.
30.  The Court therefore deems it appropriate to distinguish between defamatory attacks on private persons, whose reputation as part and parcel of their families’ reputation remains within the scope of Article 8, and legitimate criticism of public figures who, by taking up leadership roles, expose themselves to outside scrutiny.
31.  The first publication contributed to a historical debate over the Katyń events and dealt, among other things, with the role which the former Soviet leaders had presumably played therein. The second publication contained, as a matter of fact, the author’s interpretations of the domestic court’s findings in connection with the first dispute and hence, in a way, can be seen as a continuation of the same discussion.
32.  The Court notes that historical events of great importance which affected the destinies of multitudes of people, as well as the historical figures involved therein and responsible for them, inevitably remain open to public historical scrutiny and criticism, as they present a matter of general interest for society. 
33.  Given that cases such as the present one require the right to respect for private life to be balanced against the right to freedom of expression, the Court reiterates that it is an integral part of freedom of expression, guaranteed under Article 10 of the Convention, to seek historical truth. It is not the Court’s role to arbitrate the underlying historical issues, which are part of a continuing debate between historians (see Chauvy and Others v. France, no. 64915/01, § 69, ECHR 2004‑VI). A contrary finding would open the way to a judicial intervention in historical debate and inevitably shift the respective historical discussions from public forums to courtrooms.
34.  The Court also recalls that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012, with further references).35.  The criteria relevant for the balancing exercise laid down in the case‑law and recently summarised in the case Von Hannover v. Germany (no. 2) (cited above, §§ 108-13) are, in the Court’s view, mutatis mutandis applicable in the present case. The Court notes that the domestic courts considered the contribution made by the disputed publications to the debate of general interest, the role of the person concerned as well as the subject, the content, the form and the information value of the publications. Firstly, they based their reasoning on the premise that the publications contributed to the factual debate over the events of exceptional public interest and importance. Secondly, they found that the historic role of the applicant’s ancestor called for a higher degree of tolerance to public scrutiny and criticism of his personality and his deeds. Finally, turning to the content and the form, the national courts noted the highly emotional character of some statements but found them within the limits of acceptable criticism.The Court also observes that the national courts explicitly took account of the Court’s relevant case-law, including the general distinction between statements of facts and value judgments, see, for instance, Lingens v. Austria (judgment of 8 July 1986, p. 28, § 46, Series A no. 103). Accordingly the Court considers that the domestic courts have struck a fair balance, required in the context of the State’s positive obligations, between the journalist’s freedom of expression under Article 10 and the applicant’s right under Article 8.36.  Having regard to the above, the Court considers that the applicant’s complaint under Article 8 of the Convention in this part is to be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention."
Removal of tissue from a deceased man’s body without the knowledge or consent of his wife amounted to degrading treatment - Elberte v. Latvia - The case concerned the removal of body tissue from Ms Elberte’s deceased husband by forensic experts after his death, without her knowledge or consent. Unknown to Ms Elberte, pursuant to a State-approved agreement, tissue had been removed from her husband’s body after her husband’s autopsy and sent to a pharmaceutical company in Germany for the creation of bio-implants. She only learned about the course of events two years after her husband’s death when a criminal investigation was launched in Latvia into allegations of wide-scale illegal removal of organs and tissues from cadavers. However, domestic authorities eventually did not establish any elements of crime. The Court found in particular that Latvian law regarding the operation of the consent requirement on tissue removal lacked clarity and did not have adequate legal safeguards against arbitrariness: although it set out the legal framework allowing the closest relatives to express consent or refusal in relation to tissue removal, it did not clearly define the corresponding obligation or discretion of experts to obtain consent. Indeed, the manner in which the relatives’ right to express their wishes was to be exercised and the scope of the obligation to obtain consent were the subject of disagreement among the domestic authorities themselves. The Court further concluded that Ms Elberte had had to face a long period of uncertainty and distress concerning the nature, manner and purpose of the tissue removal from her husband’s body, underlining that, in the special field of organ and tissue transplantation, the human body had to be treated with respect even after death. The Court held, unanimously, that there had been a violation of Article 8 (right for respect to private and family life) of the European Convention on Human Rights; a violation of article 3 (prohibition of inhuman or degrading treatment) of the Convention. 
CONCURRING OPINION OF JUDGE WOJTYCZEK
1.  In the instant case, I have voted with the majority; however I have certain doubts about part of the reasoning.
2.  I have already expressed my views concerning rights in respect of transplantation in my concurring opinion in the Petrova judgment (Petrova v. Latvia, no. 4605/05, 24 June 2014). I should like to add some further explanations here.
In my view, the applicant’s right to oppose the transplantation of her deceased husband’s organs is not an autonomous right which could be exercised ad libitum. This right is derived from the right of the deceased man to decide freely on the transplantation of his organs. The surviving relative acts as the depositary of the rights of the deceased. Therefore, the applicant may agree or object to the transplantation of her deceased husband’s organs only insofar as she expresses the wishes of the deceased. Holding otherwise would transform the body of a deceased person into an object of arbitrary decisions by relatives.
3.  The fact that the applicant indeed exercises a right protecting the wishes of her deceased husband does not mean that – under the Convention – this right has identical status with her husband’s right. However close the connection between the two rights in question, the protection afforded to them under the Convention may be different. As I explained in my concurring opinion in the Petrova case, an individual’s right to express the wishes of a deceased relative in respect of transplantation comes within the scope of family life, within the meaning of Article 8 of the Convention. The right under consideration ensures a multidimensional protection, since it protects not only the wishes of the deceased person but also those of the deceased person’s relatives themselves, and relationships within the family. Whether the right to decide freely on the transplantation of one’s own organs comes within the scope of Article 8 of the Convention is a separate issue.
4.  The Court’s case-law has constantly extended the scope of private life within the meaning of Article 8. Recent judgments may suggest that protection of private life is to be identified with the general freedom of decision in personal or private matters. The meaning of “private life” is thus gradually being transformed into a general freedom of action, a notion which is known as allgemeine Handlungsfreiheit in German legal science. In my view, such an extensive interpretation of Article 8 in the Court’s case-law does not have a sufficient legal basis in the Convention. The provision in question is sometimes misused to fill lacunae in the Convention protection.
5.  In the present case the Court has declared the complaint brought by the applicant on behalf of her deceased husband inadmissible. This is explained in the reasoning on the ground that this part of the complaint is “incompatible ratione personae”.
I accept the view that Article 8 of the Convention is not applicable to the deceased husband’s rights, at stake in the instant case. Such a restrictive interpretation of the Convention corresponds more closely to the applicable rules of treaty interpretation. However, in my view the application should be considered inadmissible ratione materiae rather than ratione personae. I do not see sufficiently strong arguments to consider that decisions concerning the transplantation of one’s own organs are covered by the notions of private life or family life as understood under the rules of treaty interpretation established in international law. To sum up, rights in respect of transplantation are only partially protected by the Convention. 
Refusal of Latvian citizenship through naturalisation did not prevent an activist from expressing his opinion or participating in meetingsPetropavlovskis v. Latvia - Articles 10 (freedom of expression), 11 (freedom of association) and 13 (right to an effective remedy) of the Convention not applicable / no arguable complaint under the Convention.  The case concerned an allegation by a political activist that he was refused Latvian citizenship through naturalisation as punishment for his views on education reform in Latvia. The Court found in particular that Mr Petropavlovskis had been free to disagree with government policies, which had been quite amply demonstrated by his numerous interviews in the mass media and civic activities both before and after the refusal to grant him citizenship, but that this was an entirely different matter from the issue of the criteria set for naturalisation and its procedure as determined by domestic law in Latvia. Indeed, requiring an individual seeking to obtain Latvian citizenship through naturalisation to demonstrate a genuine connection to the State, which includes a certain level of loyalty, could not be considered a punitive measure which interfered with freedom of expression and assembly. 
"84.  The issue whether or not the applicant has an arguable right to acquire citizenship of a State must in principle be resolved by reference to the domestic law of that State (see Kolosovskiy v. Latvia (dec.), no. 50183/99, 29 January 2004). Similarly, the question whether a person was denied a State’s citizenship arbitrarily in a manner that might raise an issue under the Convention is to be determined with reference to the terms of the domestic law (see Fehér and Dolník v. Slovakia (dec.), nos. 14927/12 and 30415/12, § 41, 21 May 2013). The choice of criteria for the purposes of granting citizenship through naturalisation in accordance with domestic law is linked to the nature of the bond between the State and the individual concerned that each society deems necessary to ensure. In many jurisdictions, acquisition of citizenship is accompanied by an oath of allegiance whereby the individual pledges loyalty to the State. The Court has addressed the issue of loyalty, albeit in a slightly different context of electoral rights, and drawn a distinction between loyalty to the State and loyalty to the government (see Tănase, cited above, § 166).
85.  The Court notes that the assessment of loyalty for the purposes of the naturalisation decision in the present case does not refer to loyalty to the government in power, but rather to the State and its Constitution. The Court considers that a democratic State is entitled to require persons who wish to acquire its citizenship to be loyal to the State and, in particular, to the constitutional principles on which it is founded. The applicant did not contest this. The Court agrees with the applicant that, in exercising his freedom of expression and assembly, he is free to disagree with government policies for as long as that critique takes place in accordance with the law; it is also true that the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. However, this is an entirely different matter from the issue of the criteria set for naturalisation and its procedure, which are both determined by domestic law. The requirement of loyalty to the State and its Constitution cannot be considered as a punitive measure capable of interfering with the freedom of expression and assembly. Rather, it is a criterion which has to be fulfilled by any person seeking to obtain the Latvian citizenship through naturalisation.
86.  The Court does not see in what manner the applicant has been prevented from expressing his disagreement with government policy on the issue of interest to him. Nor can the Court discern any facts which would indicate that he was prevented from participating in any meetings or movements.
87.  Consequently, Articles 10 and 11 of the Convention are not applicable in the circumstances of the present case and the Court upholds the Government’s objection."
Deportation of two Sudanese nationals living in France to their country of origin would entail a violation of the Convention - cases of A.A. v. France and A.F. v. France - a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights if the applicants were deported to Sudan. The cases concerned proceedings to deport to Sudan two Sudanese nationals – A.A., from a non-Arab tribe in Darfur, and A.F., from South Darfur and of Tunjur ethnicity – who had arrived in France in 2010. With regard to the general context, the Court had recently observed that the human-rights situation in Sudan was alarming, in particular where political opponents were concerned, and that merely belonging to a non-Arab ethnic group in Darfur gave rise to a risk of persecution. The Court noted that the situation had deteriorated further since the beginning of 2014.The Court found in both cases that were the orders to deport the applicants to Sudan to be enforced, the applicants would, on account of their individual circumstances, run a serious risk of incurring treatment contrary to Article 3 of the Convention.

Father of child born out of wedlock had no remedy to speed up court proceedings on his right to contact with his son - a violation of Article 8 (right to respect for private and family life) of the Convention as regards the execution of an interim decision of May 2010 granting Mr Kuppinger
the right to see his son - The case of Kuppinger v. Germany concerned the complaint by the father of a child born out of wedlock that the proceedings he had brought to enforce court decisions granting him contact rights with his son were excessively long and ineffective. The Court found that the German authorities had failed to take effective steps to execute the interim contact decision granting Mr Kuppinger the right to see his son. It further found, in particular, that he did not have an effective remedy under German law against the length of proceedings which did not only offer monetary redress, but which could have expedited the proceedings on his contact rights before the family courts.

Insufficient reasons given by Croatian courts when ordering telephone tapping of drug-trafficking suspect - case of Dragojević v. Croatia - violation of Article 8 (right to respect for private and family life, home and correspondence) of the European Convention on Human Rights - The case principally concerned the secret surveillance of telephone conversations of a rugtrafficking suspect. The Court found in particular that Croatian law, as interpreted by the national courts, did not provide reasonable clarity as to the authorities’ discretion in ordering surveillance measures and it did not in practice – as applied in Mr Dragojević’s case – provide sufficient safeguards against possible abuse.
"78.  The Court reiterates that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8. Their monitoring amounts to an interference with the exercise of one’s rights under Article 8 (see Malone v. the United Kingdom, 2 August 1984, § 64, Series A no. 82).79.  Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, amongst many others, Kvasnica v. Slovakia, no. 72094/01, § 77, 9 June 2009).80.  The expression “in accordance with the law” under Article 8 § 2 in general requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, for example, Kruslin v. France, 24 April 1990, § 27, Series A no. 176‑A).81.  In particular, in the context of secret measures of surveillance as the interception of communications, the requirement of legal “foreseeability” cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, where a power of the executive is exercised in secret the risks of arbitrariness are evident. Thus, the domestic law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see, for example, Malone, cited above, § 67; Huvig v. France, 24 April 1990, § 29, Series A no. 176‑B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998‑V; Weber and Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006 XI; and Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009).82.  The Court has also stressed the need for safeguards in this connection (see Kvasnica, cited above, § 79). In particular, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Bykov, cited above, § 78, and Blaj, cited above, § 128).83.  Furthermore, in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist guarantees against abuse which are adequate and effective. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28; Weber and Saravia, cited above, § 106; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 77, 28 June 2007; and Kennedy v. the United Kingdom, no. 26839/05, § 153, 18 May 2010).84.  This in particular bears significance as to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, since the Court has held that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions (see Kennedy, cited above, § 153). In assessing the existence and extent of such necessity the Contracting States enjoy a certain margin of appreciation but this margin is subject to European supervision. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society”. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica, cited above, § 80; and Kennedy, cited above, § 154)." 
Making French nationals settled in Monaco liable for payment of the wealth tax was not contrary to the Convention - case of Arnaud and Others v. France - no violation of Article 1 of Protocol No. 1 (protection of property) to the Convention alone or taken in conjunction with Article 14 (prohibition of discrimination) - The case concerned new legislation which made French nationals who had settled in the Principality of Monaco liable, from 2005, to pay the solidarity tax on wealth on the same basis as if they were domiciled or resident in France. The Court held that this legislation had been enacted in the context of a longstanding and close relationship between France and Monaco in tax matters, particularly in respect of the French nationals who had settled in the Principality, for reasons related to that State’s specific geographical and fiscal features. It considered that the taxpayers had received prior notification, enabling them to comply with their obligations to the best of their abilities and noted that, in order to mitigate the amount of tax payable from 2005, arrangements for payment had been introduced and no sanctions had been imposed for the preceding period. The Court therefore concluded that the contested tax liability had not upset the fair balance which was to be struck between the applicants’ interests and the general interest.



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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