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

Thursday, 8 October 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 41

A university’s right to reputation under the European Convention is more limited than that of an individual’s - Kharlamov v. Russia - violation of Article 10 (right to freedom of expression) ECHR - The case concerned a civil action in defamation brought against Mr Kharlamov, a university professor, by his employer, Orel State Technical University, after he expressed the view that the University’s governing body could not be considered legitimate due to shortcomings in the election procedure. The Court found that the domestic courts, in their decisions against Mr Kharlamov, had notably failed to take into account the specific features of academic relations. In particular, the protection of a university’s authority or reputation under the Convention could not be equated to that of an individual’s. Focusing their attention entirely on Mr Kharlamov’s description of the elected senate as illegitimate, the domestic courts had therefore failed to strike a fair balance between the need to protect the University’s reputation and Mr Kharlamov’s freedom to express his opinion on the organisation of academic life. 

"1. In my view, the present case provides an exclusive opportunity for the Court, and the domestic courts, to enrich and develop their case-law on defamation cases. The reason why I consider it necessary to write a separate opinion is that in defamation cases the European Court of Human Rights and the domestic courts adopt a completely different approach to and legal assessment of the same situation after applying the same methodology. Moreover, the position of the Court (expressed in general and even vague terms) does not explain or attempt to explain why the domestic courts were wrong.
2. The fact is that Russian judges are very well aware of the difference between statements of facts and value judgments. They also know that value judgments should be based – at least to some degree – on factual circumstances: “even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive” (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II; among Russian cases see, for example, Novaya Gazeta v Voronezhe v. Russia, no. 27570/03, 21 December 2010, § 38). Both the Court and the domestic courts referred to the Resolution of the Plenary Supreme Court no. 3 of 24 February 2005, which is a principal source for the courts on the substantive and procedural aspects of defamation cases and refers to the Convention and to the implementation of the Court’s case-law. 
3. Turning to the application of the election procedure examined by the Russian courts in the context of domestic defamation proceedings, the courts found that the elections had been organised in accordance with those rules. The courts concluded that, according to the regulations on the election of the academic senate of the Orel State Technical University, only faculty councils were entitled to nominate their candidates to the senate, and that this right was not granted to smaller units like departments (кафедры) at the faculties; accordingly, the candidates were not to be discussed at the physics department where the applicant worked at the material time. I ought to mention that those regulations are widely accepted by other universities in Russia.
The courts established that the council of the Faculty of Electronics and Instrumentation had discussed the candidates and nominated its candidate (in fact a representative in the senate I believe) and that the physics department had not discussed the candidates. The courts concluded that the applicant had failed to prove that the newly elected senate was illegitimate. It seems that the domestic courts did comply with international standards in principle, so it is not sufficient, in my view, for the Chamber to find a violation of Article 10 of the Convention by mere reference to self‑governance in the “academic” or “professional” context, or to “acts or omissions of an elected body” (the latter was not the subject of any criticism by the applicant at all) or to “exaggerations as long as they do not overstep the limits of admissible criticism” (see paragraphs 25-27 and 33 of the judgment). It is hard to say that the case-law of the Court referred to by the Chamber (including the case of Palomo and Sanchez and Others v. Spain) is capable of supporting a finding of a violation in the present case, so the position of the Court needs further clarification. Further, I would like to explain some deficiencies in the domestic proceedings which, in my opinion, led to the violation of Article 10 of the Convention.
4. With regard to statements of facts and value judgments, the Court noted that “the domestic courts considered the applicant’s subjective appraisal of the election procedure to be a factual accusation” (see paragraph 31 of the judgment). It was neither just an appraisal, nor a statement of fact. The applicant concluded that the elections were unlawful and that therefore all the senate’s decisions should be deemed unlawful. That was a legal opinion. Therefore, the Orel Regional Court was wrong to say that the issue of the legitimacy of a governing body was a factual statement, even if the allegation that the academic senate could not be considered a legitimate body was verifiable in court (see paragraph 13 of the judgment). It is clear that the verification of that opinion includes a legal analysis, not the establishment of facts alone.
Paragraph 7 of the above-mentioned Resolution of the Plenary Supreme Court provides that statements damaging honour, dignity or professional reputation include statements on the violation of laws or the commission of dishonest or unethical acts. In my view, this position is fair in relation to those violations of laws which could be considered to be dishonest or unethical acts. The shortcomings of the election procedure themselves could not be considered dishonest or unethical, so the national courts had to dismiss the defamation claim lodged by the university.
The District Court stressed, however, that the applicant had accused the newly elected senate of dishonest acts. That was a further mistake. One may conclude that the applicant in fact accused the management of the university of converting public elections into a private affair. I assume that the management, not the university itself, had to bring the case before the court. This position complies with the principles of corporate law according to which a conflict may arise between the shareholders and the management, but not between the shareholders and the company. The only exception relates to criticism of the activity and results of the organisation as a whole. The applicant did not mention anyone’s name, but it was clear that his message was personalised with respect to those who were responsible for organising the election process and their families.
The issue is whether the applicant “overstepped the limits of admissible criticism” (see paragraph 32 of the judgment). It may be possible to agree with the conclusion of the domestic courts if we take into account part of the recommendation issued by the Russian Education Ministry on 21 September 2006 (no. 18-02-10/08) on the procedure for electing a rector of a university. According to this document, the senate of the university approves the list of candidates to be elected at the conference of delegates. The senate election procedure is similar to that recommendation, so it is not so easy to find someone personally liable.
On the other hand, there are governing standards for universities approved by the Russian Government on 14 February 2008 and amended on 2 November 2013 (Resolution no. 71) which provide in section 57 that the senate is an elected representative governing body (выборный представительный орган) of the university which is to be elected at the general meeting of the staff or at the conference of delegates. The internal regulations of the university establish the number of representatives (нормы представительства) so that each structural unit can be represented at the senate.
The University’s internal regulations allow faculties, not their departments, to be represented in the senate. Each faculty is allowed only one representative in the senate. The regulations do not empower the faculty councils to nominate the candidates and do not explicitly preclude the staff members from evaluating the candidates. Nor do the internal regulations allow the staff members to nominate themselves to stand for election as candidates (under section 60 of Resolution no. 71, such an opportunity does exist, for example in relation to the self-nomination of candidates for the position of rector).
Democratic elections cannot be effective without alternative candidates. This principle was vital for the contested election of the University of Cambridge Chancellor in 2011 as the election was the first time the Chancellorship had been contested since 1950, and the first actively fought contest since 1847. Three other candidates were nominated to oppose the candidate proposed by the University’s Nomination Board. On hearing of his success, Lord Sainsbury, who won the election, said: “I am delighted and honoured to have been elected as the next Chancellor of Cambridge University, and would like to thank all those who have supported me, and the other candidates who have made this such a friendly election. I am particularly pleased that the election did not turn into a battle between the arts and humanities and science, or between political parties, and I look forward to championing the University in its entirety at home and abroad in the years ahead”. These words reflect an impressive development of democratic society and election culture.
Turning to the present case, the election regulations seem to be controversial: the faculty council is authorised to discuss and to nominate its candidate/representative, but the ordinary professors have to vote in favour of this candidate/representative without any alternatives. Such a distinction between the choice of the best candidates by faculty councils and the voting at the conference by ordinary professors within the election process (two consecutive, but equal, steps to be made by different groups) leads to the conclusion that the subsequent step (voting) becomes pointless and that the ordinary professors are excluded from the election of their representatives.
Hence, in my opinion, the present case cannot be examined without an analysis of the nature of the impugned relations in the context of a representative democracy. This analysis should have been done by the courts at both the international and the domestic level, but they failed to do so.
5. Democracy: according to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for individual self-fulfilment. Subject to paragraph 2 of Article 10, 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. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Jerusalem, cited above, § 32).
The Court preferred not to take this position as a basis for its judgment. Moreover, the phrase “the test of necessity” mentioned in paragraph 26 of the judgment does not have the standard extension “in a democratic society” (see, for example, Jerusalem, cited above, § 33). This creates the impression that the Court preferred to limit itself to the professional and academic context in order to separate this category of defamation cases from “political” ones where journalists, members of parliament or other political figures are involved.
I cannot agree with this approach. I believe that the present case relates, more fully, to democracy in the professional and academic context. The Court acknowledged that the applicant had commented on a matter of public interest for the University staff (see paragraph 31 of the judgment), but this is insufficient to conclude that there was a violation of the Convention. The State regulations mentioned above and the University’s internal regulations do not prohibit or otherwise preclude the staff members from discussing candidates. But the nature of the democratic process requires such a discussion. The members of the senate are representatives of their units, and no alternative candidates were presented at the conference. This means that a proper election should be organised at the level of the faculty. This level should include the participation of all the staff members, otherwise the election process is actually replaced by a nomination, and stuff members are excluded from the election process under the regulations of the University (and potentially of other universities in Russia). The heads of departments are not automatically entitled to speak on behalf of their staff at the faculty council on the issue of a representative government of the University.
Therefore, the applicant raised the issue of voting rights and the University management reacted inadequately in the form of a defamatory claim instead of organising a public debate on this issue at the conference. The domestic courts obliged the applicant not merely to pay compensation, but also to read out a statement at another conference of the University that his allegations did not match the reality. In my view, the national courts’ decisions had a chilling, or even humiliating, effect on the applicant.
I ought to mention that, according to the Code of Good Practice in Electoral Matters (Guidelines and explanatory report adopted by the Venice Commission at its 52nd session on 18-19 October 2002), universal suffrage means in principle that all human beings have the right to vote and to stand for election. The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging participation in debates on matters of legitimate public concern (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298). This means that the Convention inherently protects democratic principles through the freedom of expression applicable to any organisation. It is vital that democracy start much earlier than parliamentary elections; it starts at the level of local municipalities, associations and organisations. I believe that the protection of representative democracy should prevail over the autonomy of an organisation such as the University, which enjoys a certain degree of autonomy under Russian law in relation to its self-government.
Further to the findings above, I conclude that the domestic courts and the management of the University revealed an apparent lack of any genuine concern to combat the deficiencies in the senate election process. On the contrary, they did their best to prove that there was no problem with democracy. Such a perception of democracy should be improved in order to protect human dignity and safeguard the progress of society.
My analysis is quite detailed, but the values of the Convention cannot be protected by mere reference to the importance of a public debate without identifying those values which may be regarded as a matter of general interest and the subject of public debate. For this purpose the Court undertook a very detailed analysis in the Von Hannover v. Germany (no. 2) judgment and concluded in paragraph 124 that “the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest”."
Conviction of local politician for illegal publications found in his office was unjustifiedcase of Müdür Duman v. Turkey - violation of Article 10 (freedom of expression) ECHR - The case concerned the complaint by a local leader of a political party that his conviction on account of illegal pictures and publications found in the office of his party had amounted to an unjustified interference with his right to freedom of expression. The Court noted that although Mr Duman had denied any knowledge of the material found in his office, his conviction constituted an interference with his rights under Article 10. The Court found that the reasons given for his conviction by the Turkish courts could not be considered relevant and sufficient. In particular, Mr Duman’s conduct could not be construed as support for unlawful acts and there was no indication that the material in question advocated violence, armed resistance or an uprising.

  • System of electoral administration in Azerbaijan is not independent; reform should be encouraged - Gahramanli and Others v. Azerbaijan  
  • Non-exhaustion of domestic remedies owing to failure to bring an action to establish State responsibility following a suicide in custody - Benmouna and Others v. France  
  • A lack of specific measures to cater for a schizophrenic prisoner whose behaviour seemed to preclude any risk of suicide does not mean that the prison authorities were guilty of negligence - Sellal v. France
  • Long prison sentences for organisers of protests which led to clashes with police were unjustified - Karpyuk and Others v. Ukraine
  • Criminal conviction for a press article that did not call for violence or amount to hate speech breached freedom of expression - Belek and Velioğlu v. Turkey
  • Confession made during police interview in the absence of a lawyer and following ill-treatment should not have been admitted as evidence - Turbylev v. Russia
  • The delay in reinstating children who were excluded from school after being wrongly diagnosed with leprosy was in breach of the Convention - Memlika v. Greece
  • The appeal proceedings concerning a pre-trial detention order were not unlawful - Alouache v. France
  • Refusal to change surname spelling did not breach right to respect for private life - Macalin Moxamed Sed Dahir v. Switzerland

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