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

Thursday, 21 January 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - week 3

Lustration proceedings against Constitutional Court president were unfaircase of Ivanovski v. “The former Yugoslav Republic of Macedonia” - This case concerned lustration proceedings against the then president of the Constitutional Court of ‘The former Yugoslav Republic of Macedonia’, as a result of which he was dismissed from office - violation of Article 6 on account of the overall unfairness of the lustration proceedings; and a violation of Article 8 (right to respect for private and family life). The Court found in particular that an open letter by the Prime Minister stating that a member of the Constitutional Court had been a collaborator with the security services, published in the media while the lustration proceedings against Mr Ivanovski were pending, had been incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6. The national courts’ analysis in Mr Ivanovski’s case had not been sufficiently thorough to conclude that the interference with his rights under Article 8 had been necessary. Moreover, the interference with his rights, in particular a ban on taking any employment in the public service or academia for a period of five years, had been disproportionate to the legitimate aim sought to be achieved.

"(b) The Court’s assessment
136. The Court considers that in cases such as the present one, where the applicant complains about unfairness of the proceedings and supports his allegations by several mutually reinforcing arguments touching on various aspects of Article 6 § 1 of the Convention, an appropriate approach would be to examine the fairness of proceedings complained of taken as a whole. In such cases the Court may find a breach of Article 6 § 1 of the Convention if the proceedings taken as a whole did not satisfy the requirements of a fair hearing, even if each procedural defect, taken alone, would not have convinced the Court that the proceedings were unfair (see, for example, Kinský v. the Czech Republic, no. 42856/06, §§ 83-84, 9 February 2012).
137. The Court reiterates that Article 6 of the Convention requires courts to be independent and impartial. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Morice v. France [GC], no. 29369/10, § 73, 23 April 2015 and the cases cited therein).
138. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Morice, cited above, § 74).
139. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified. In this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice, cited above, §§ 76 and 78)
140. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also raise the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996‑III).
141. Likewise, the concepts of independence and objective impartiality are closely linked (see, for example, Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997‑I), and it is sometimes difficult to dissociate them (see, for example, Bochan v. Ukraine, no. 7577/02, § 68, 3 May 2007).
142. Turning to the present case, the Court notes, as regards subjective impartiality, that there was nothing to indicate any prejudice or personal bias on the part of the judges dealing with the applicant’s case.
143. As regards the objective test, it is clear from the applicant’s submissions that in his mind the timing of the promotion of two judges who had sat in his case, taken in conjunction with the public statement made by the Prime Minister, objectively gave rise to doubts about the independence and impartiality of the courts that adjudicated his case (see paragraph 134).
144. The Court notes that the present case concerns lustration of the Constitutional Court’s president, and reiterates that the recent history of the post-communist countries shows that the files created by the former security services can be used in an instrumental way for political or other ends (see Joanna Szulc v. Poland, no. 43932/08, § 88, 13 November 2012).
145. In this connection the Court notes that before and during the lustration proceedings against the applicant there was an exchange of harsh statements between the Government and some MPs from the ruling party on the one side, and the Constitutional Court on the other (see paragraph 13-14, 17, 32 and 37 above). From their content it seems that the statements critical of the Constitutional Court were prompted by its decisions to first suspend and then invalidate certain provisions of the Lustration Act (see paragraphs 12 and 15-16 above). This would appear to have reinforced the preconceived opinion of the ruling party’s leaders that the court was against them because the majority of its judges had been appointed during the term of the former President of the Republic, whose party had been in opposition since July 2006, and because it had invalidated some other reform legislation of their Government.
146. Among those statements the Court attaches particular importance to the Prime Minister’s open letter published on 24 September 2010, that is, while the lustration proceedings against the applicant were still pending before the Commission and before they had reached the judicial stage. In that letter, which was directed at the opponents of lustration, the Prime Minister used the initial findings of the Commission to denounce the applicant as a collaborator of the secret police of the former regime, who, still controlled by a certain “centre of power”, was the one behind the Constitutional Court’s decisions invalidating a number of legislative reforms of his Government (see paragraph 32 above).
147. The Court reiterates that Article 6 of the Convention is not concerned with the outcome of proceedings, but guarantees fairness in the proceedings themselves (see Kinský, cited above, § 112). It thus sees no reason to speculate on what effect the Prime Minister’s statement may have had on the course of the lustration proceedings (see, mutatis mutandis, Sovtransavto Holding, cited above, § 80, and Kinský, cited above, §§ 94 and 112). It is sufficient to note that the lustration proceedings ended in the applicant’s disfavour and that, in view of its content and the manner in which it was made, the Prime Minister’s statement was ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis, Sovtransavto Holding, loc. cit.), it being understood that what is at stake here is not actual proof of influence or pressure on judges but the importance of the appearance of impartiality (see Kinský, cited above, § 98).
148. Seen against the backdrop of the said statement, the Court considers the applicant’s concerns as to the independence and impartiality of the Administrative Court and the Supreme Court in his case were not unreasonable, subjective or unjustified (see Sovtransavto Holding, loc. cit.; and Kinský, cited above, §§ 94 and 99).
149. This finding of the Court is further reinforced by the opinion of the European Commission, which in its Progress Report of 9 November 2010 observed that the lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary” (see paragraph 109 above).
150. The above considerations are sufficient for the Court to conclude that the proceedings in question, taken as a whole, did not satisfy the requirements of a fair hearing. It therefore does not find it necessary to address the applicant’s further arguments as regards the lack of independence and impartiality, in particular those related to career advancements of judges who participated in decision-making in his case (see paragraph 134 above).
151. It follows that there has been a violation of Article 6 § 1 in the present case."
Defamation claims against Patrick de Carolis and France 3 were upheld in breach of their right to freedom of expression case of de Carolis and France Televisions v. France - violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned an accusation of defamation brought by Saudi Prince Turki Al Faisal on account of a documentary on the France 3 television channel concerning complaints lodged by families of the victims of the 11 September 2001 attacks. Mr de Carolis and the journalist who made the documentary were found guilty of public defamation against an individual, Prince Turki Al Faisal, who had joined the proceedings as a “civil party”. The court declared the TV channel France 3 civilly liable for the damage caused. The Court found, after a detailed examination, that the way in which the subject was dealt with did not contravene the standards of responsible journalism. As regards the sanctions, the fine to which Mr de Carolis had been sentenced and the civil liability finding against France 3 were a disproportionate interference with their right to freedom of expression which was not necessary in a democratic society.

Refusal to grant prisoner access to Internet websites containing legal information breached his right to receive information - Kalda v. Estonia - Violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned a prisoner’s complaint about the authorities’ refusal to grant him access to three Internet websites, containing legal information, run by the State and by the Council of Europe. Mr Kalda, the applicant, complained in particular that the ban under Estonian law on his accessing these specific websites had breached his right to receive information via the Internet and prevented him from carrying out legal research for court proceedings in which he was engaged. The Court found in particular that Contracting States are not obliged to grant prisoners access to Internet. However, if a State is willing to allow prisoners access, as is the case in Estonia, it has to give reasons for refusing access to specific sites. In the specific circumstances of Mr Kalda’s case, the reasons, namely the security and costs implications, for not allowing him access to the Internet sites in question had not been sufficient to justify the interference with his right to receive information. Notably, the authorities had already made security arrangements for prisoners’ use of Internet via computers specially adapted for that purpose and under the supervision of the prison authorities and had borne the related costs. Indeed, the domestic courts had undertaken no detailed analysis as to the possible security risks of access to the three additional websites in question, bearing in mind that they were run by an international organisation and by the State itself.

Measures taken by the authorities to identify the sources for an article written on the basis of confidential documents breached freedom of expression - Görmüş and Others v. Turkey - Violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned three different aspects of freedom of expression, namely the protection of journalistic sources, the disclosure of confidential information and the protection of whistle-blowers. The Court held that the article published by the weekly newspaper Nokta, on the basis of “confidential” military documents about a system for classifying the media on the basis of whether they were “favourable” or “unfavourable” to the armed forces, was capable of contributing to public debate. Emphasising the importance of freedom of expression with regard to matters of public interest and the need to protect journalistic sources, including when those sources were State officials highlighting unsatisfactory practices in their workplace, the Court held that the interference with the journalists’ right to freedom of expression, especially their right to impart information, had not been proportionate to the legitimate aim sought, had not met a pressing social need, and had not therefore been necessary in a democratic society; the interference had consisted in the seizure, retrieval and storage by the authorities of all of the magazine’s computer data, even data that was unrelated to the article, with a view to identifying the public-sector whistle-blowers. Lastly, the Court considered that this measure was such as to deter potential sources from assisting the press in informing the public on matters of general interest, including when they concerned the armed forces. 

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