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

Thursday, 14 January 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - week 2


Monitoring of an employee’s use of the Internet and his resulting dismissal was justifiedcase of Bărbulescu v. Romaniano violation of Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights (ECHR) - The case concerned Mr Bărbulescu’s dismissal by his employer, a private company, for having used the company’s Internet for personal purposes during working hours in breach of internal regulations. The Court found, in particular, that Mr Bărbulescu’s private life and correspondence had been engaged. However his employer’s monitoring of his communications had been reasonable in the context of disciplinary proceedings.


Judge Pinto de Albuquerque expressed a dissenting opinion 

"1. Bărbulescu v. Romania concerns the surveillance of Internet usage in the workplace. The majority accept that there has been an interference with the applicant’s right to respect for private life and correspondence within the meaning of Article 8 of the European Convention on Human Rights (“the Convention”), but conclude that there has been no violation of this Article, since the employer’s monitoring was limited in scope and proportionate. I share the majority’s starting point, but I disagree with their conclusion. I have no reservations in joining the majority in finding the Article 6 complaint inadmissible.

2. The case presented an excellent occasion for the European Court of Human Rights (“the Court”) to develop its case-law in the field of protection of privacy with regard to employees’ Internet communications[1]. The novel features of this case concern the non-existence of an Internet surveillance policy, duly implemented and enforced by the employer, the personal and sensitive nature of the employee’s communications that were accessed by the employer, and the wide scope of disclosure of these communications during the disciplinary proceedings brought against the employee. These facts should have impacted on the manner in which the validity of the disciplinary proceedings and the penalty was assessed. Unfortunately, both the domestic courts and the Court’s majority overlooked these crucial factual features of the case.
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22. “Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace.”[61] New technologies make prying into the employee’s private life both easier for the employer and harder for the employee to detect, the risk being aggravated by the connatural inequality of the employment relationship. A human-rights centred approach to Internet usage in the workplace warrants a transparent internal regulatory framework, a consistent implementation policy and a proportionate enforcement strategy by employers. Such a regulatory framework, policy and strategy were totally absent in the present case. The interference with the applicant’s right to privacy was the result of a dismissal decision taken on the basis of an ad hoc Internet surveillance measure by the applicant’s employer, with drastic spill-over effects on the applicant’s social life. The employee’s disciplinary punishment was subsequently confirmed by the domestic courts, on the basis of the same evidence gathered by the above-mentioned contested surveillance measure. The clear impression arising from the file is that the local courts willingly condoned the employer’s seizure upon the Internet abuse as an opportunistic justification for removal of an unwanted employee whom the company was unable to dismiss by lawful means.
23. Convention rights and freedoms have a horizontal effect, insofar as they are not only directly binding on public entities in the Contracting Parties to the Convention, but also indirectly binding on private persons or entities, the Contracting State being responsible for preventing and remedying Convention violations by private persons or entities. This is an obligation of result, not merely an obligation of means. The domestic courts did not meet this obligation in the present case when assessing the legality of the employer’s dismissal decision, adopted in the disciplinary proceedings against the employee. Although they could have remedied the violation of the applicant’s right to respect for private life, they opted to confirm that violation. This Court did not provide the necessary relief either. For that reason, I dissent."
Lack of legal assistance during questioning in police custody made trial unfaircase of Borg v. Malta violation of Article 6 § 3 in conjunction with Article 6 § 1 ECHR - (right to a fair trial and right to legal assistance of one’s own choosing) of the European Convention on Human Rights, and by a majority, that there had been no violation of Article 6 § 1 in respect of an alleged lack of legal certainty concerning the constitutional proceedings - The case mainly concerned the complaint by a convicted offender of not having had any legal assistance during questioning in police custody, resulting from the absence of any provisions under Maltese law in force at the time allowing for legal assistance during pre-trial investigation and questioning by the police. The Court found in particular that Mr Borg had been denied the right to legal assistance at the pre- trial stage as a result of a systemic restriction applicable to all accused persons. This fell short of the requirement under Article 6 that the right to assistance of a lawyer at the initial stages of police interrogation might only be subject to restrictions if there were compelling reasons.

Maintaining an ancillary penalty which imposed a permanent ban on exercising medicine was in breach of the Convention case of Gouarré Patte v. Andorra - violation of Article 7 (no punishment without law) of the ECHR - The case concerned the fact that it was impossible for the applicant, a doctor, to obtain revision of an ancillary penalty entailing a lifetime ban on practising his profession. The applicant had been sentenced to five years’ imprisonment, one year of which was to be served in prison and the remainder on parole, for three sexual offences committed while carrying out his duties as a doctor. In application of the Criminal Code in force at the time, he was also sentenced to the ancillary penalty of a lifetime ban on practicing his profession. The Court found, in particular, that the Andorran courts had maintained the application of the severest penalty although the legislature had subsequently provided for a milder sentence with retrospective application. Maintaining the application of a penalty which went beyond the conditions of the criminal legislation in force had led the Andorran courts to violate the principle of the rule of law and to breach the applicant’s right to have imposed on him a penalty provided for by law.

Hungarian legislation on secret anti-terrorist surveillance does not have sufficient safeguards against abusecase of Szabó and Vissy v. Hungary - violation of Article 8 (right to respect for private and family life, the home and correspondence) ECHR - The case concerned Hungarian legislation on secret anti-terrorist surveillance introduced in 2011. The Court accepted that it was a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies, including massive monitoring of communications, in pre-empting impending incidents. However, the Court was not convinced that the legislation in question provided sufficient safeguards to avoid abuse. Notably, the scope of the measures could include virtually anyone in Hungary, with new technologies enabling the Government to intercept masses of data easily concerning even persons outside the original range of operation. Furthermore, the ordering of such measures was taking place entirely within the realm of the executive and without an assessment of whether interception of communications was strictly necessary and without any effective remedial measures, let alone judicial ones, being in place.

Quashing a formal recognition of paternity at the request of the child’s biological father did not breach the Conventioncase of Mandet v. Franceno violation of Article 8 (right to respect for private and family life) of the ECHR - The case concerned the quashing of the formal recognition of paternity made by the mother’s husband at the request of the child’s biological father. The Court noted that the reasoning in the domestic courts’ decisions showed that the child’s best interests had been duly placed at the heart of their considerations. In taking this approach, they had found that, although the child considered that Jacques Mandet was his father, his interests lay primarily in knowing the truth about his origins. These decisions did not amount to unduly favouring the biological father’s interests over those of the child, but in holding that the interests of the child and of the biological father partly overlapped. It was also to be noted that, having conferred parental responsibility to the mother, the domestic courts’ decisions had not prevented the child from continuing to live as part of the Mandet family, in accordance with his wishes.

Lawyer’s disproportionate criminal conviction for written statements criticising a judgecase of Rodriguez Ravelo v. Spain - violation of Article 10 (freedom of expression) of the ECHR - The case concerned expressions used by a lawyer in a written application containing value judgments regarding a judge and attributing blameworthy conduct to her. The Court found that, although serious and discourteous, the terms used by Mr Rodriguez Ravelo had been expressed in writing and only the judge and the parties had been aware of them. The statements had concerned the manner in which the judge had conducted the case and had been submitted in the context of defending his client’s interests. The Court held that Mr Rodriguez Ravelo’s criminal conviction was capable of having a chilling effect on lawyers called upon to defend their clients. The Spanish criminal courts had therefore failed to strike a fair balance between the need to maintain the authority of the judiciary and the need to protect freedom of expression. The sentence imposed on the lawyer had therefore not been proportionate to the legitimate aim pursued and accordingly had not been necessary in a democratic society.

Dissolution of the political party DTP was in breach of the Conventioncase of Party for a Democratic Society (DTP) and Others v. Turkey - violation of Article 11 (freedom of assembly and association) of the ECHR and a violation of Article 3 of Protocol No. 1 to the Convention (right to free elections) in respect of Ms Tuǧluk and Mr Türk. The case concerned the dissolution of the Party for a Democratic Society (“the DTP”, Demokratik Toplum Partisi), part of the pro-Kurdish left-wing political movement, and the forfeiture of the parliamentary mandates of certain of its members of parliament, including those of its co- presidents.  The Court found in particular that the reasons put forward by the Constitutional Court for ordering the DTP’s dissolution, one of the main political actors which had argued in favour of a peaceful solution to the Kurdish problem, could not be regarded as sufficient to justify the interference in its right to freedom of association. The Court did not identify any DTP political project that was incompatible with the concept of a democratic society; it also considered that the speeches made by its two co-presidents were not such as to justify this dissolution, in so far as they had not encouraged the use of violence, armed resistance or insurrection. It noted, however, that taking such a measure on the ground that the party had not openly distanced itself from the acts or speeches of its members or local leaders that could be interpreted as indirect support for terrorism could reasonably be held to have met a “pressing social need”. However, it considered that, having regard to the relatively limited political impact on public order or the protection of the rights and freedoms of others, this failure to act could not in itself amount to a reason justifying a sanction of such severity as the dissolution of an entire party. The Court also held that the forfeiture of the parliamentary seats of Ms Tuǧluk and Mr Türk, co- presidents of the DTP, on account of their speeches could not be considered proportionate to any legitimate aim, as this measure was incompatible with the very substance of their right to be elected and sit in parliament under Article 3 of Protocol No. 1 and infringed the sovereign power of the electorate who had elected them.

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