The Fourth Section’s Curious Take on Article 10 in Petropavlovskis v. Latvia: Two Comments

This guest post was written by Corina Heri, Ph.D. researcher at the University of Zürich, Switzerland, and visiting researcher at the Human Rights Centre, Ghent University[1]

In its recent judgment in Petropavlovskis v. Latvia, the European Court of Human Rights considered whether the domestic authorities’ refusal to naturalize a government-critical activist constituted a punitive measure in violation of that individual’s rights to freedom of expression (Article 10 ECHR) and freedom of assembly and association (Article 11 ECHR). The present post will comment on two aspects of the Court’s reasoning regarding Article 10 ECHR. In evaluating the applicability of that provision, the Chamber focused on whether the applicant has a right to acquire Latvian nationality and whether he was prevented from voicing his opinions. These emphases of the judgment mean that the matter at the heart of the case, namely whether the applicant was penalized for expressing his opinions, was not addressed.

Facts and the Assessment of the Court

Latvia has a culturally and ethnically heterogeneous population, wherefore the interest in establishing a cohesive society and promoting the national language (Latvian) enjoys strong protection. The “Education Law”, which took effect in 1999, provides that the language of instruction in Latvian state and municipal schools would be Latvian; previously, Russian-language schooling had been available. The applicant, who belongs to a Russian-speaking minority in Latvia whose members became stateless after the dissolution of the USSR, led a movement to protest the reform.

In 2003, the applicant sought to obtain Latvian citizenship via naturalization, and passed the corresponding exams. Though informed that he met the conditions for naturalization, his application was later refused. On appeal, the domestic authorities argued that the applicant had not demonstrated the requisite loyalty to the Republic of Latvia. The Latvian Citizenship Law provides that persons whose acts against the independence of the country, its democratic parliamentary structure or its state authority have been established in court are barred from naturalization. The domestic authorities argued that they had taken a political decision based on the applicant’s actions, which made it clear that he could not truthfully pledge his allegiance to the nation and that his application for citizenship was part of a political campaign intended to harm the Republic of Latvia.

The crucial question before the Fourth Section was whether Articles 10 and 11 ECHR, which were examined together, applied to the case before it. The Court noted that the applicant had been free to express his views on the education reform before and after his application for naturalisation was refused. The judges went on to examine whether the applicant had a right to acquire Latvian nationality, holding that

“The requirement of loyalty to the State and its Constitution cannot be considered as a punitive measure capable of interfering with the freedom of expression and assembly. Rather, it is a criterion which has to be fulfilled by any person seeking to obtain the Latvian citizenship through naturalisation.” [para. 85]

and that

“The Court does not see in what manner the applicant has been prevented from expressing his disagreement with government policy on the issue of interest to him. Nor can the Court discern any facts which would indicate that he was prevented from participating in any meetings or movements.” [para. 86]

On the basis of this reasoning, the Court unanimously found that Articles 10 and 11 of the Convention were not applicable to the case.

Comment

Emphasis on the absence of a right to acquire a particular nationality

The Court’s judgment revolves around whether the applicant has a right to acquire Latvian nationality, emphasizing that decisions in such matters are closely linked to state sovereignty, and fall within the domestic jurisdiction of the state (para. 80 of the judgment). However, it is crucial to note that the applicant did not complain to the Court about the rejection of his application for naturalisation per se, but submitted that the corresponding decision constituted a punitive measure imposed in light of his political activities. In its reasoning, the Court concentrated on whether the applicant has a right to obtain Latvian nationality. This emphasis, which demonstrates a certain reluctance by the Court to engage with the broader context of the applicant’s allegations, led to rather unconvincing reasoning in the Fourth Section’s judgment.

The problematic nature of the Court’s emphasis becomes more apparent when taking into consideration, mutatis mutandis, its case-law on civil servants’ rights under Article 10. In Wille v. Liechtenstein, the Grand Chamber considered whether Article 10 ECHR had been violated when, due to views that the applicant had publicly expressed, the Prince of Liechtenstein refused to reappoint him to public office. While access to the civil service is not a right guaranteed by the Convention, the Grand Chamber held in paras. 41-44 of Wille, such access was not at the heart of the issue before it. The Court determined that there had been an interference with the applicant’s rights under Article 10, and went on to find a violation of that provision.

While the facts of Wille are certainly different from those before the Court in the case at hand, the same principle can be applied in both cases. In Petropavlovskis, the heart of the issue before the Court is not whether the applicant has a right to become a naturalized citizen of Latvia, but whether he has been penalized for expressing his political opinions. Given that the Court’s view of what constitutes interference with Article 10 is usually a broad one,[2] the approach it has taken in Petropavlovskis is certainly curious.

A narrow approach to what constitutes interference with Article 10

The Court ultimately declared that, inter alia as the applicant had not been prevented from expressing his opinion, Article 10 did not apply to the case at hand. The essential point is not, however, whether the applicant was unable to express his views, but whether he was punished for expressing them. Political debate, as opposed to artistic or other expression, enjoys the strongest protection under the Convention.[3] While the Court examines prior restraints on expression more strictly,[4] freedom from unjustified ex post punishment for one’s opinions is as much a part of Article 10 as the freedom to express those views in the first place.[5] The text of Article 10(2), which requires justification of all “formalities, conditions, restrictions or penalties” to which free expression is subjected, underlines this point.

In addition, the “chilling effect” argument is relevant in this case. Punishing individuals for expressing their views can discourage them and others from doing so again in the future.[6] In the context of the present case, a chilling effect on political expression by the sizable non-citizen Russian-speaking minority in Latvia is a non-negligible possibility. The Court refused to acknowledge this potential, instead exempting the duty of loyalty to the state and its constitutional principles in the context of naturalisation proceedings from the purview of Article 10 (para. 86 of the judgment). The Court’s judgment would have been more transparent if it had – after finding that there had been an interference with Article 10 – shifted these considerations to the analysis of the justification of that interference.[7]

Conclusion

The Court declared Article 10 inapplicable in this case, considering that there had been no interference with the applicant’s rights under that provision. The emphases set in the judgment present the scope of the provision as narrow and fail to engage with the broader context of the alleged Convention violation. The Court’s past jurisprudence, however, presents Article 10 as a broad provision, meaning that – seen in the context of the relevant Strasbourg case-law in a more general sense – the Petropavlovskis judgment is curious indeed.

[1] Corina Heri’s research interests include vulnerability and international human rights law. Her Ph.D. research concerns the concept of vulnerability under Article 3 ECHR.

[2] Rainey Bernadette, Wicks Elizabeth, and Ovey Clare, Jacobs, White & Ovey: The European Convention on Human Rights, Sixth Edition (Oxford University Press 2014), 436 et seq.

[3] Lingens v. Austria, no. 9815/82, Judgment of 8 July 1986, Series A No. 103, § 42.

[4] Observer and Guardian v. the United Kingdom, no. 13585/88, Judgment of 26 November 1991, Series A No. 216, § 60; Mosley v. the United Kingdom, no. 48009/08, Judgment of 10 May 2011 (not reported), § 117.

[5] Rainey/Wicks/Ovey, cited above, 436 et seqq.

[6] On Article 10 and the chilling effect, see Ó Fathaigh Rónán, ‘Article 10 and the Chilling Effect Principle’ (2013) 3 European Human Rights Law Review 304.

[7] Compare Van der Schyff Gerhard, ‘Interpreting the Protection Guaranteed by Two-Stage Rights in the European Convention on Human Rights: The Case for Wide Interpretation’ in Brems Eva and Gerards Janneke, Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2013), 65-83.

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