This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 42

• Expulsion from Russia to Syria would violate the European Convention on Human Rights
• Television broadcast showing non-blurred image of an individual obtained using a hidden camera entailed a violation of his privacy
• NGOs should have verified allegations about misconduct of a radio editor before complaining to the authorities

Expulsion from Russia to Syria would violate the European Convention on Human Rights - In the case of L.M. and Others v. Russia the European Court of Human Rights held, unanimously that the applicants’ forced return to Syria would give rise to a violation of Article 2 (right to life) and/or Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights. The case concerned the impending expulsion of three men to Syria from Russia and their detention pending expulsion in Russia. This was the first time that the Court addressed in a judgment the issue of returns to Syria in the current situation. The Court found that, in view of international reports about the crisis in Syria and additional information about the applicants’ individual situation, the applicants had put forward a well-founded allegation that their return to Syria would expose them to a real risk to their lives and personal security. Having regard to its finding that the applicants’ detention, since the last decision by the Russian courts confirming their expulsion order in May 2014, had been in breach of Article 5, the Court held, in application of Article 46 (binding force and execution of judgments), that Russia was to ensure the immediate release of two of the applicants who had so far remained in detention.

Television broadcast showing non-blurred image of an individual obtained using a hidden camera entailed a violation of his privacy - case of Bremner v. Turkey - violation of Article 8 (right to respect for private life) of the European Convention on Human Rights - The case concerned the broadcasting of a television documentary in which the applicant, Mr Bremner, who was shown promoting his evangelical Christian beliefs, was described as a “foreign pedlar of religion” engaged in covert activities in Turkey. The Court found in particular that the broadcasting of Mr Bremner’s image without blurring it could not be regarded as a contribution to any debate of general interest for society, regardless of the degree of public interest in the question of religious proselytising.

NGOs should have verified allegations about misconduct of a radio editor before complaining to the authorities - case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina - no violation of Article 10 (freedom of expression) of the European Convention on Human Rights - The case concerned defamation proceedings brought against four NGOs following the publication of a letter they had written to the highest authorities of their district to complain about the entertainment editor of a public radio station. The Court found in particular that the national courts, which had heard witnesses in the defamation proceedings, had correctly concluded that the applicant NGOs had acted negligently in simply reporting the entertainment editor’s alleged misconduct without making a reasonable effort to verify its accuracy. The national courts had therefore struck a fair balance between the radio entertainment editor’s right to reputation (as a prospective candidate for a position as a public servant, namely the director of a public radio station) and the applicant NGOs’ right to report irregularities about the conduct of a public servant to the body competent to deal with such complaints.

JOINT DISSENTING OPINION OF JUDGES NICOLAOU, TSOTSORIA AND VEHABOVIĆ

"We regret that we are unable to subscribe to the view of the majority that the Appellate Court judgment finding the applicants liable for defamation, as upheld by the Constitutional Court, was compatible with Article 10 of the Convention. We are of the opinion that it was not and that there has therefore been a violation of the applicants’ right to hold opinions and to receive and impart information and ideas under that Article.

Section 6 of the Defamation Act 2003 of BD defines defamation as causing damage to the reputation of a person by “...ascertaining or disseminating a falsehood in relation to that person...”. It is, of course, for the domestic courts to interpret legislation, but no question arises as to the meaning and effect of the relevant provision in the present case. What is at issue is, in effect, whether the undisputed facts of the case could conceivably afford grounds for imputing any liability to the applicants.

As we understand those facts, they clearly do not. We note first that it cannot be said that the applicants were, in the circumstances, responsible for disseminating the letter complained of. They addressed it to the competent authorities, that is to say the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD. It was a very limited communication, which was both private and confidential, and was made to persons who had a direct institutional interest in the matter and were thus entitled to receive it. The letter was certainly not meant for wider publication or, in the words of Section 6 of the Defamation Act 2003, for dissemination. That the applicants reserved the right to contact the media if no action was taken by the authorities does not detract from this argument; whether such an eventuality would have materialised and, if so, in what form or with what content one simply does not know. Lastly, it has not been suggested that the applicants should be held accountable for the ultimate dissemination of the letter, in which they were not shown to have been involved in any way.

The letter in question concerned in essence the procedure for the appointment of a director of the BD public radio. It contained views on matters of public interest. It criticised the approach already taken by the authorities and transmitted to them “unofficial information” received in relation to candidate M.S., to the effect that M.S. was unsuitable for the post. The gist of it all was that the authorities were duty-bound to direct their attention to the said “unofficial information” and, if it was substantiated, to act accordingly. It was clear that the applicants relied on the authorities to inquire into the various allegations and to evaluate them.

The fact that some of the allegations to which that information referred might have been shown, after inquiry, to be unfounded or inaccurate could not by itself vitiate the propriety of the applicants’ communication with the authorities. What is germane to the present purpose is that the applicants themselves made no definite or final assertions as to the facts. In the words of Section 6 of the Defamation Act 2003, there was nothing they did that could fairly be regarded as tantamount to ascertaining a falsehood.

We would further emphasise that in this type of situation the communication should be seen in context. Account should be taken of the need to protect the reputation of the individual but also of the need to maintain confidence in public administration by encouraging the involvement of citizens and addressing their concerns. People are entitled, in the discharge of their civic duties, to bring relevant information to the attention of the authorities and may, indeed, do so in strong terms in an attempt to persuade the authorities to scrutinise such information so as to ensure sound administration in public affairs. A person may sometimes overstep the mark and, where that happens, a proportionality exercise may be necessary. In the present case, the highest domestic courts approached the case as if the applicants had actually gone farther than they should have done. Even if that were the case the courts then failed, in our view, to carry out a meaningful examination of the relevant competing interests bearing on the proportionality of State interference with the right to freedom of expression under Article 10."