Whistleblower Protection for Journalist Who Alarmed Public Opinion about Censorship on TV

by Dirk Voorhoof (UGent)

A recent judgment of the European Court of Human Rights once more illustrates the need for strict scrutiny by the Strasbourg Court in order to keep up the standards of media freedom and the right of freedom of expression and information in European pluralistic democracies. In the judgment of Matúz v. Hungary the European Court confirms the importance of whistleblower protection, in casu for a journalist who alarmed public opinion about censorship within the public broadcasting organisation in Hungary.

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Conviction of journalist for reporting about sex abuses in a Christian rehabilitation centre violated Article 10 ECHR

By Flutura Kusari * and Dirk Voorhoof **

In Erla Hlynsdottir v. Iceland (no. 2), an Icelandic journalist had been convicted for defamation after reporting that the director of a Christian rehabilitation centre and his wife had been involved in sex games with patients of the centre. The European Court of Human Rights found a violation of Article 10 of European Convention on Human Rights, arguing that the national courts did not pertinently balance the right to freedom of expression with the right to reputation. According to the Court “the most careful scrutiny” is called for when the measures taken by national authorities are capable of discouraging the participation of the press in debates over matters of legitimate public concern. The Court also refers to “the essential function the press fulfils in a democratic society” as a central factor for its determination in the present case.

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Blanket ban on the right of military personnel to form and join a trade union violates Article 11 ECHR

This guest post was written by Isabelle Van Hiel, PhD Researcher and Teaching Assistant at the social law section of the Department of Criminology, Criminal Law and Social Law of the Law Faculty of Ghent University.

In two recent cases of 2 October 2014 the ECtHR had to decide on the freedom of association of military personnel. Although the Court already examined cases involving trade union freedom within the police and the civil service, it was the first time that the Court considered the specific situation of the armed forces.

In Matelly v. France (application no. 10609/10), an officer in the French gendarmerie which forms in France a part of the military, was forced to resign from an association named Forum gendarmes et citoyens. The forum was considered by the Director General of the National Gendarmerie as a trade-union-like occupational group, which was prohibited under Article L. 4121-4 of the Defence Code. In ADEFDROMIL v. France (application no. 32191/09) the Association de Défense des Droits des Militaires (ADEFDROMIL), a professional organisation for servicemen, complained about its denial of access to justice, as it was considered to be in breach of the same provisions of Article L. 4121-4 of the Defence Code. This article L. 4121-4 declares the existence of occupational organisations for military personnel as well as the membership of such organisations incompatible with the prescriptions of the military discipline[1].

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Mocanu v. Romania: do large-scale human rights violations justify only a mild admissibility test?

This guest post was written by Helena De Vylder, Ph.D. researcher at the Human Rights Centre of Ghent University. Her research focuses on admissibility criteria in regional human rights systems.

Mocanu and others v Romania fits in a series of cases in which the Strasbourg Court needed to deal with grave and large-scale human rights violations, happening before the entry into force of the Convention. The events happening before the entry into force are undoubtedly not subject to the temporal jurisdiction of the Convention. The admissibility of complaints concerning the investigative measures and proceedings after the coming into force in the contrast has been accepted by recent case law (and here). Mocanu further refines this case law by dealing with particular circumstances.

In this case, the Court had to deal with the investigation and the length of proceedings which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, Ms Mocanu’s husband – the first applicant’s husband – was killed by gunfire and Mr Stoica – the second applicant – was arrested and ill-treated by the police. The criminal proceedings are still pending in respect of the first applicant. The relevant investigation in respect of the second applicant was terminated by a final judgment in 2011. The applicants claim the proceedings did not live up to the standards put forward by the procedural aspect of article 2 and 3.

In contrast to the merits, the admissibility of the case is less straightforward. The admissibility issues relate to the jurisdiction ratione temporis and the exhaustion of domestic remedies. Continue reading

A Different Perspective on Hassan v. United Kingdom: A Reply to Frederic Bernard

This guest post was written by Cedric De Koker, Phd Researcher, Institute for International Research on Criminal Policy (IRCP), Ghent University.

On the 16th September 2014, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered its judgment in the landmark case of Hassan v. United Kingdom. The case concerned the deprivation of liberty of a young male during the phase of active hostilities in Iraq and raised issues relating to extraterritoriality, the right to liberty and security (Article 5 ECHR) and the relationship between international humanitarian law (IHL) and Human Rights Law (HRL). In his guest post, Frederic Bernard has aptly described and analysed the facts of the case, the legal questions put before the Court, as well as the decision and points of view of both the majority and the dissenting judges. One issue merits further consideration, however, as it was instrumental in the Court reaching his decision and has turned out to be the most contentious aspect of the judgment: whether or not the UK complied with Art. 5 ECHR and could, absent any derogation, rely on the Third and Fourth Geneva Convention to intern the applicants brother, even though said article explicitly precludes internment and administrative detention where there is no intention to bring criminal charges. In what follows, I will therefore take a closer look at the rationale and arguments underpinning the decision of the Court and the opinion of the four dissenting judges with regard to this issue and provide the readers with an alternate point of view, as it is at this point that I disagree with the analysis of Mr. Bernard. The facts of the case have been extensively described elsewhere and will not be repeated here (a summary can be found here and here)

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Mansur Yalçın v. Turkey: religious education and the (easy) way out

This guest post was written by Yousra Benfquih, FWO aspirant, PhD Fellow Research Foundation Flanders at the University of Antwerp.

In the case of Mansur Yalçın v. Turkey, 14 Turkish nationals living in Istanbul who are adherents of the Alevi faith, complained before the Court that the way in which the religion and ethics class – a compulsory subject in primary and secondary public education under article 24 of the Turkish Constitution – was taught, violated Article 2 of Protocol No. 1. In this connection, they moreover put forward a violation of Articles 9 and 14 of the Convention. Continue reading

Deprivation of liberty in armed conflicts: the Strasbourg Court’s attempt at reconciling human rights law and international humanitarian law in Hassan v. UK

This guest blog post was written by Frederic Bernard, Lecturer at the University of Geneva, Global Studies Institute, and Attorney-at-law admitted to the Geneva Bar.

The fragmentation of international law has been for some time the subject of in-depth academic and expert studies, as exemplified, for instance, by the report dedicated to this topic on 13 April 2006 by the Study Group of the International Law Commission. The relationship between international human rights law and international humanitarian law, in particular, has attracted much attention. In this context, the Hassan case is noteworthy, because, for the first time, the Strasbourg Court’s Grand Chamber had to address this relationship directly, in order to assess whether the applicant’s brother’s rights had been breached due to his detention in Iraq by British forces during the 2003 war:

This is the first case in which a respondent State has requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law.

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