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Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgment in E.S. v. Austria

Published on October 29, 2018        Author: 
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This past weekend Irish voters decided, by an overwhelming majority, to amend the Irish Constitution so as to decriminalize blasphemy. Just a few days before this referendum, however, a unanimous Chamber of the European Court of Human Rights gave its blessing to the criminalization of blasphemy, in all but name, in its judgment in E.S. v. Austria, no. 38450/12.

I have now read this judgment several times. Each time I read it I was left more disturbed. It applies the Court’s previous troubling precedents in this context – such as the notorious judgment in Otto-Preminger-Institut v. Austria – wholly uncritically, while even going beyond them in policing offensive speech. It unpersuasively tries to draw a distinction between blasphemy laws, which categorically impermissibly infringe on the freedom of speech, and the Austrian law at issue, as interpreted and applied by Austrian courts, which according to the Court strikes the right balance between the freedom of speech and the freedom of religion. As I will explain, the Court’s distinctions are essentially meaningless and incapable of being applied in any non-arbitrary way, leading us not to a slippery slope of a further erosion of free speech, but to a cliff. Its reasoning lacks rigour and fetishizes the national margin of appreciation. Worst of all, the judgment will likely do nothing to promote religious tolerance in Europe, but will only help to further the narrative of Islamophobic closet neo-Nazis (who are, by the way, already in power in Austria, and not for the first time) that they are free speech martyrs , victimized in their own country by horrible minorities, elites and human rights lawyers.

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Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Freedom of Expression, Freedom of Religion
 
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Intelligence Sharing and the Right to Privacy after the European Court Judgment in Big Brother Watch v. UK

Published on September 24, 2018        Author: 
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On 13 September 2018, the European Court of Human Rights ruled in three consolidated cases brought by 14 human rights organisations and 2 individuals against the UK government’s mass interception program and its access to the intelligence gathered by other governments, including the United States (Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.)

As noted already by Marko Milanovic, these cases are nuanced, complex, and long. I intend to focus here on one aspect, namely the way the Court assessed the intelligence sharing claim brought by the applicants (paras 416-449.) This assessment is noteworthy as that claim presents an issue of first impression for the Court. As the judgment itself notes, “this is the first time that the Court has been asked to consider the Convention compliance of an intelligence sharing regime” (para 416). (It is worth noting, however, that the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08 also touches upon this issue.)

The applicants’ intelligence sharing claim centred on the revelations, contained in disclosures by Edward Snowden, that the UK government has access to information collected by other foreign intelligence agencies, and most notably the U.S. National Security Agency (NSA). In particular, these revelations suggest that the UK government has direct and unfettered access to raw data intercepted by other governments, which it can then filter, store, analyse and further disseminate. They further suggest that the UK government has similarly broad access to information stored in databases by other governments.

From a human rights law perspective, the fundamental question raised in this case is the nature of the interference and therefore the applicable test to apply to such interference. Read the rest of this entry…

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Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Human Rights, Right To Privacy/Family Life
 
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ECtHR Judgment in Big Brother Watch v. UK

Published on September 17, 2018        Author: 
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Last week the European Court of Human Rights issued a highly anticipated blockbuster Chamber judgment in Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.

This is the first mass electronic surveillance case to be decided against the UK after the Edward Snowden revelations, and it touches upon numerous issues. The judgment is nuanced, complex, and long. It addresses key questions such as the proportionality of bulk interception programmes much more directly and with greater sophistication than the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08, which was decided by a different Chamber while this case was being deliberated, and which also upheld a bulk surveillance programme (see here for Asaf Lubin’s take on Just Security).

The judgment is too rich to summarize easily, so I will only set out some key takeaways (for an extensive discussion on surveillance and privacy in the digital age, see my 2015 Harvard ILJ piece).

First, and most importantly, the judgment is a mixed bag for privacy activists: while the Court finds that the UK’s surveillance programme under the now-defunct Regulation of Investigatory Powers Act (RIPA) was deficient in important respects and in violation of Article 8 and 10 of the Convention, it at the same time normalizes such mass surveillance programmes. In particular, the Court decided that bulk interception programmes are not categorically disproportionate, as privacy activists have argued. Second, in a similar vein, the Court finds that prior judicial authorization is not indispensable for the legality of bulk interception, again contrary to what privacy activists have argued, even if prior judicial authorization could be seen as best practice (note that under the new 2016 Investigatory Powers Act the UK has moved to a double-authorization system which involves both a minister and an independent quasi-judicial commissioner).

Here are the key paragraphs (warning – extracts from the judgment make this a lengthy post):

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Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Extraterritorial Application, Freedom of Expression, Right To Privacy/Family Life
 
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‘Drug Addicts’ and the ECHR

Published on September 3, 2018        Author: 
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Paul Hunt has said that drug control and human rights have operated in ‘parallel universes’. For the most part this is true and the vast majority of human rights advocacy and scholarship in this area goes to attempting to bridge that divide and hopefully mitigate some of the damage brought about by the ‘war on drugs’. Recently, however, I have become more and more interested in those areas where human rights and drugs have already converged, sometimes explicitly. This leads to the ECHR and to questions about whether such convergence is a good thing.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law

…

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

Article 5(1)(e) of the ECHR is unique in international human rights law. The formulation is absent from the American Convention on Human Rights, the African Charter on Human and People’s Rights and the Covenant on Civil and Political Rights. A first question, then, is how this fairly odd wording arrived in the ECHR? It did not feature in the UDHR or in the draft Covenant on Human Rights drafted in 1949 and from which article 5 began. The answer, it appears, is Sweden, though there is an interesting gap in the travaux in this regard.

Reference to alcoholics, drug addicts and vagrants was absent from the initial drafts of the article. At the first expert committee meeting, however, Sweden proposed the wording that ‘This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism…’ This attention to alcohol makes sense when one considers the history and influence of the temperance movement in Sweden. It was ultimately withdrawn, however, on the condition it be put on record that the text ‘covered, in particular, the right of signatory States to take the necessary measures for combating vagrancy and drunkenness …’. It is further recorded that ‘the Committee had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order’. Read the rest of this entry…

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Filed under: European Convention on Human Rights, Human Rights
 
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The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018        Author: 
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Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).

 

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Filed under: EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Extraterritorial Application, Freedom of Expression, Jurisdiction, Kosovo, Territorial Disputes
 
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Copenhagen – much ado about little?

Published on April 14, 2018        Author:  and
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The Ministers of the Council of Europe adopted the ‘Copenhagen Declaration’ Friday April 13 concerning the perpetual reform of the European Human Rights System. Previous installments were agreed at Interlaken, Izmir, Brighton and Brussels.

On the face of it not much is new in the Declaration. It is still interesting, not least for what the Ministers agreed not to include from the draft circulated by the hosts April 5. The Danish draft urged states to reign in the Court by a dramatic extension of the ‘margin of appreciation,’ and by more control through political ‘dialogue.’ The robust rejection of these proposals also show us how the Court is independent yet accountable, to states committed both to protect human rights in Europe, and to complex conceptions of sovereignty and subsidiarity.

The agreed declaration is strikingly different:  Instead of being skeptical to the Court’s achievements and its course, the final Declaration is explicitly supportive of the Court and its independence from the states. The large backlog of cases gives reasons for “serious concern”, though the principal problem is not the Court, but rather some states’ failure to implement the Court’s judgments.  Read the rest of this entry…

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Filed under: EJIL Analysis, European Convention on Human Rights, Human Rights
 
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Revising the verdict in Ireland v UK: time for a reality check?

Published on April 6, 2018        Author: 
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There is a general misunderstanding about the revision judgment that was delivered by the European Court of Human Rights (ECtHR) on 20 March 2018.  The Court does not have the power under the Convention (ECHR) to revise a past final judgment because it considers it is wrong or was wrongly decided.  It only has an inherent power to revise a judgment where an error has been made concerning matters that were unknown to the Court and which, had they been known, might have had a decisive influence on the outcome of the case.  This power is exercised sparingly and reluctantly because there is almost a presumption that judgments have been correctly decided and should not be revised.  All revision requests will thus be subject to strict scrutiny in the interests of preserving legal certainty.

The newspaper headlines that the Court had found that the five techniques did not amount to torture is thus misleading.   The Court has decided not to alter the original judgment’s characterisation of the five techniques.  It has made no finding of its own about torture and it has made this clear.

Apart from the victims’ understandable sense of injustice and bewilderment there is an air of unreality surrounding these proceedings.

Firstly, it is beyond doubt that if the same issue was decided today the five techniques would be held to amount to torture.  The law on torture has evolved considerably since 1978 – the date of the Court’s original judgment – to take account of society’s sensitivity to and condemnation of the use of torture. The present Court has expressed the view that an increasingly high standard is required in the protection of human rights and that this “inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.” The decision of the Court in 1978 to characterise the five techniques as only amounting to inhuman and degrading treatment which was strongly criticised at the time by many commentators is arguably one of the reasons for this increasingly high standard. Another is the realisation that torture has not been eradicated and that it can involve many different and sophisticated forms of unlawful treatment, such as water-boarding, and other variants of sensory deprivation techniques. It is a sad consequence of the old Court’s characterisation that it was used by the US government to assert that ‘water-boarding’ did not amount to torture. This was entirely spurious and self-serving since US government lawyers chose to ignore the marked evolution of the concept of torture that had occurred since 1978.

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Filed under: EJIL Analysis, European Convention on Human Rights, Human Rights, Torture
 

Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case

Published on April 5, 2018        Author: 
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The European Court of Human Rights (“ECtHR”) recently rejected a request by Ireland to revise its judgment in the 1978 Ireland v. The United Kingdom case, where the Court found that the use by the then U.K. government of five techniques of interrogation on fourteen individuals amounted to “inhuman and degrading treatment” in breach of Article 3 of the European Convention on Human Rights (“ECHR”), but did not rise to the level of torture. In the recent revision request Ireland asked the ECtHR to revise the original judgment, based on evidence that has recently become available, and to find that the five techniques did amount to torture.

The Court rejected Ireland’s request, a decision that was met with disappointment by human rights advocates. Grainne Teggart, Amnesty International’s Northern Ireland campaigns manager remarked that this was “a very disappointing outcome, for the men and their families” and argued that the Court “missed a vital opportunity to put right a historic wrong.” Without taking away from the anguish of the fourteen individuals who suffered and continue to suffer as a result of being subjected to the harsh interrogations, it is necessary to understand the reasoning behind the Court’s decision and challenge the notion that it was a denial of justice.

A revision request is not an opportunity to fix the Court’s past mistakes or re-evaluate a case in light of more recent case-law. Rather, it is a technical process that allows the Court to revise a judgment only when new facts emerge which should have been made available to the Court at the time of the original judgment and which would have had a decisive influence on the Court. Should the Court agree to revise a case where any new fact or later case law would point to a different outcome, or where it finds the Court simply made a mistake, it would lead to complete chaos and uncertainty. In this case, the decision to deny the revision request was justified on the basis of maintaining legal certainty, a fundamental aspect of justice. Read the rest of this entry…

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Filed under: European Convention on Human Rights, European Court of Human Rights, Human Rights, Torture
 

Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-Liman

Published on April 3, 2018        Author: 
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The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.

Initial Proceedings

In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.

Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities. Read the rest of this entry…

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Filed under: Customary International Law, EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Human Rights, International Law and Domestic Law, Jurisdiction
 
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Part 2: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 21, 2018        Author:  and
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CAT’s Defiance in Response to State Pushback

In Part I of our analysis of the new CAT General Comment, we noted that state pushback on a range of issues, for example diplomatic assurances and post deportation redress, was successful as evidenced by the committee’s amendments to the now adopted GC.  In this post, we discuss the areas where the CAT stood its ground in the consultation process and resisted state pushback, on some occasions even pushing certain doctrines beyond the position stated in the draft GC, despite states’ concerns.

Reverse Burden of Proof

The draft GC proposed a reverse burden of proof in cases where an individual “cannot elaborate on his/her case”. This would be, for example, if she has no possibility to obtain documentation regarding her alleged torture or is deprived of her liberty (para 40). There was pushback against the reverse burden of proof from several countries with the US, Russia, Norway, Finland, Denmark, and Australia all arguing that this was not reflective of the wording of the Convention or the Committee’s caselaw, which suggests that the burden is always on the complainant to present their case.  While a reverse burden of proof is occasionally mentioned in the committee’s caselaw, this only ever shifts after the complainant has provided enough evidence to substantiate their case (see e.g. SPA v Canada, at para 7.5).  Despite this pushback, and the lack of grounding in the Committee’s caselaw, a reverse burden of proof has been retained in the adopted GC demonstrating the Committee’s use of the GC to engage in dynamic interpretation of the Convention.

Internal Flight Alternative Read the rest of this entry…

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Filed under: Effective Remedy, EJIL Analysis, European Convention on Human Rights, European Court of Human Rights, Human Rights, Non-State Actors, Torture
 
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