June 04, 2020
By Francesco Luigi Gatta, Research Fellow, UCLouvain, member of EDEM (Equipe droits européens et migrations)
In the era of the internet, social media and e-mails, the Strasbourg Court has been called to keep up with these ‘new technologies’. The ECtHR itself, for example, has an official Twitter account, used to give information and updates to the public. During the Covid-19 emergency, moreover, telework and electronic communication have enabled the Court to continue its essential activities (see the ECtHR’s press release: here and here).
Despite its undeniable usefulness, at the same time the use of internet has raised issues in terms of compliance with human rights. The Court has been dealing with an increasing number of questions relating to the freedom of expression, the right to respect for private life or the prohibition of discrimination, thereby developing its ‘new technologies’ case-law. Within this context, the social media-human rights nexus has also come to the attention of the Strasbourg judges, involving various issues such as hate speech (e.g. Beizaras and Levickas v. Lithuania, which concerned the discrimination, on the grounds of sexual orientation, of two men because of the authorities’ refusal to investigate homophobic comments posted on Facebook. For an analysis of the judgment, see here; for the issue of offensive comments on-line, see here).
But social media may have a direct impact on human rights also in terms of access to the ECtHR, as they may be used as a medium to lodge an application and/or to establish and maintain contact between the applicant and their representative. Accordingly, the Court has dealt with social media not only on its merits, but also from a procedural point of view, assessing the use of such modern and informal means of communication with regard to the admissibility of an application.
The topic of social media in the litigation before the ECtHR is addressed in this blogpost from two angles: the admissibility of the use of social media as a means to initially lodge an application to the Court (i), and to subsequently maintain the lawyer-applicant contact during the proceedings (ii). In each case, the legal framework is first briefly outlined, then some examples are provided. These are drawn from the ECtHR’s migration-related case-law, as situations involving migrants may typically pose major issues, given their often vulnerable and precarious conditions, for lawyers in terms of maintaining contact with the applicants.
Lodging an application
Persons, NGOs or groups of individuals may present applications to the ECtHR under Article 34 ECHR. According to Rule 36(1) of the Rules of Court (“RoC”), they can do so themselves or through a representative. When choosing to be represented, Rule 45 RoC requires the application to have the applicant’s and the representative’s signature (§1) and to supply a power of attorney or a written authority to act (§3). Rule 47 reiterates and specifies these requirements: the application must have the dated and original signature of the applicant providing authority to be represented, plus the original signature of the representative agreeing to act for the applicant (§1(c)).
As clarified by the Court, such formal conditions are essential for representatives to demonstrate that they have received specific authorisation and explicit instructions from the alleged victim on whose behalf they lodge an application under Article 34 ECHR (Post v. The Netherlands; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, GC, §102). Moreover, a duly completed authority form constitutes an integral part of the application, with the consequence that, in the absence of such authority, the application cannot be considered valid and in principle would be rejected (Kokhreidze and Ramishvili v. Georgia, §§16-17).
At the same time, the Court has also affirmed that, in general, the admissibility criteria should be applied with a certain degree of flexibility and tolerance. Indeed, without prejudice to the prescribed procedural conditions, but given the context of protecting human rights, the ECtHR should avoid requiring excessive formalism when receiving an individual application. Such a flexible, human rights-oriented approach has also been adopted by the Court with regard to the use of informal means of communication, such as social media platforms.
The case J.R. and Others v. Greece, concerning three Afghan nationals deprived of their liberty in an ‘hotspot’ on the Greek island of Chios, offers an interesting example on this issue. With respect to the merits, the judgment is rather questionable as the Court found that the applicants’ detention – aimed at their removal from Greece under the EU-Turkey Statement – was not arbitrary nor unlawful, despite this detention lasting for one month (analyses and comments here and here). The detention conditions in the hotspot were also considered compatible with the Convention, although NGOs and other observers had reported problematic issues, such as overcrowding, poor quality of food, insufficient medical care.
Yet, as to the admissibility, the judgment addresses an interesting issue with regard to the power of attorney. The applicants’ representative, a lawyer based in Germany, never met the Afghan nationals and lodged the application to the ECtHR without their signature on the application form. The lawyer explained to the Strasbourg judges that as the applicants were detained on a Greek island, there was thus no chance to reach them by post, nor was it physically possible to obtain their signature.
Instead of the applicants’ signatures, he provided the Court with a copy of the text of the WhatsApp messages exchanged with them, thereby proving that they had confirmed their willingness to pursue the case in Strasbourg and be represented by him. The lawyer also provided the Court with photos of the applicants: photos taken with a mobile phone in the Greek hotspot and sent via WhatsApp to Germany. Once the application was lodged, the Court asked the lawyer for clarifications and additional details regarding the lack of signatures and, following his explanations, it declared the application admissible.
What matters for the Court is that the willingness to lodge an application and that the applicant’s intention to be represented are clearly indicated, regardless of the form (J.R., §64). Indeed, neither the ECHR nor the RoC impose any specific requirements as to the manner in which this has to be done. This had been previously endorsed by the Court in the leading case Hirsi Jamaa and Others v. Italy, concerning the interception of African migrants attempting to cross the Mediterranean and their subsequent push back to Libya. Confronted with the issue of the validity of the applicants’ powers of attorney, the Grand Chamber, despite various formal defects contested by the Italian government (e.g. illegible or incomplete signatures), affirmed the prevalence of the substance over the form, acknowledging the validity of ‘a simple written authority… in so far as it has not been shown that it was made without the applicant’s understanding and consent’ (Hirsi, §52).
Such a flexible approach, coupled with the use of social media, which allows a quick and intuitive way to exchange information, may potentially open new and interesting avenues of access to the Court.
Pursuing an application
A clear, genuine lawyer-applicant contact must persist not only in the initial phase of the introduction of the application, but also throughout the subsequent proceedings before the Court. The reason why the maintenance of contact is required is two-fold. On the one hand, to demonstrate and confirm the applicant’s intention and interest to purse the application and, on the other, to learn more about his/her personal circumstances and to possibly receive updated information about the case (V.M. and Others v. Belgium, §35).
Maintaining an active and continuous connection with the applicant is thus crucial to the fate of the application. If the Court detects a significant, unjustifiably prolonged lack of contact, it may at any stage of the proceedings decide to strike the application out of its list of cases according to Article 37(1) ECHR and Rules 43 RoC. The lack of a real and steady interaction between the applicant and the representative, may indeed be interpreted by the Court as an indication that the applicant no longer wishes to pursue the case (Ibrahim Hayd v. the Netherlands, §5; Kadzoev v. Bulgaria, §7), or as a sign of the incapacity of the representative to ‘meaningfully pursue the proceedings’ in the absence of instructions from the applicant (Ali v. Switzerland, §32; Ramzy v. the Netherlands, §64).
At the same time, however, the Court has also proven to be aware that in some cases – typically those involving migrants – difficulties may arise as regards the preservation of a proper and regular contact. This is often true due to practical issues, including access to the internet, the impossibility of correspondence, instability or security issues in the home country. In such circumstances, ‘it [the Court] cannot ignore the generally precarious conditions of asylum seekers and other events that may temporarily prevent communication between a legal representative and applicants’ (Sharifi and Others v. Italy and Greece, §131; Asady and Others v. Slovakia, §36).
The Court does not merely assess the abstract existence of a connection between the applicant and the representative, but also examines its ‘quality’ in terms of intensity, continuity and authenticity. Accordingly, failure to keep the judges informed of the applicant’s whereabouts, or, at least, to provide them with basic information or a means to contact the applicant, may lead to striking the application out of the list. But how is the ‘quality’ of the contact assessed in relation to the medium of communication? Does the device used (e.g. phone, computer) play a role in this regard? In the eyes of the Court, are modern means of communication (e.g. social media) acceptable tools to credibly maintain the lawyer-applicant contact? As the following examples from the ECtHR’s case-law show, the answer to these questions is not always unambiguous.
In Hirsi, back in 2012, the Italian government challenged ‘the quality of existing contact between the applicants and their representatives’ (§46). According to the respondent State, such contact – kept exclusively via telephone and e-mail – could not be considered as adequately established and as enabling the applicants’ fully conscious participation in the case. In particular, the electronic messages, sent by the applicants without any signature, casted doubt on their authenticity. In spite of this, the Grand Chamber considered this kind of contact sufficient in light of the peculiar circumstances of the case. Furthermore, it acknowledged the serious difficulties faced by the lawyers in maintaining an interaction with the applicants, who had been expelled to Libya where the security and human rights situations had significantly deteriorated.
In the case N.D. & N.T., recently decided by the Grand Chamber in February 2020, the Court specifically requested information about the maintenance of contact with the applicants (§69). Although their representatives could only provide uncertain and rather vague updates – as both applicants were living in precarious circumstances and without a fixed address – the Court considered relevant the fact that they ‘could be contacted by telephone and WhatsApp’ (§74). Besides having the applicants’ numbers, the plausibility to reach them was further reinforced by the fact that the lawyers, at the hearing in Strasbourg, read out an extract from a phone conversation with one of the applicants (Ibid.).
Written messages and ‘selfies’ sent via the application WhatsApp have been also considered acceptable by the Court as a means of contact, as mentioned above with regard to the case J.R. and Others and the issue of the power of attorney.
In the judgment Sharifi and Others v. Italy and Greece, delivered in 2014, the Court decided to strike the application out of its list with regard to some of the Afghan applicants due to lack of contact with their representative. In one case, in particular, the mere existence of a Facebook account with a picture supposedly portraying the applicant was considered insufficient by the Court, in the absence of any further explanation, to prove the maintenance of an authentic lawyer-applicant connection (§129).
In the case Asady and Others v. Slovakia, recently decided with a ruling delivered in March 2020 (comment and analysis here), the Court dealt, inter alia, with the use of Facebook as a means to maintain contact with the Afghan applicants after their expulsion to Ukraine. It acknowledged that, although in an atypical and informal way, Facebook is a medium that allows people to remain in contact with one another (or, to quote the social network’s original mission statement, ‘to connect people’). In light of the peculiar circumstances of the case, it affirmed to be aware ‘of the complicated situation both of those applicants who seek asylum in Europe and those applicants who have returned to Afghanistan’, and to be ‘therefore ready to accept that they may not be able to communicate with their legal representative regularly and via traditional means’ (§38).
For the Court, however, finding that, in principle, Facebook represents an acceptable medium for communication, does not automatically mean that any contact kept through this social network is acceptable in terms of ‘quality’ of the contact itself. This issue is illustrated in Asady where distinctions were introduced according to the applicants’ different Facebook situations: some of the applicants were members of a dedicated Facebook group specifically created by the lawyers to remain in touch, discuss and follow the developments of the case in Strasbourg, whereas others had only a Facebook account, without participating in the mentioned group. The Court decided to strike the application out of its list with regard to these latter applicants as their lawyers had only provided a link to Facebook profiles and very generic information about their geographical location. It found that this information was not enough as ‘the sole fact that a Facebook account exists under the applicant’s name or a similar name does not necessarily prove that there has been any real contact between the applicant and his or her representative’ (§40).
But there is more: the Court struck the applications out of its list also with regard to two applicants who, despite being members of the Facebook group created by the lawyers, did not engage in any conversation therein. By contrast, it accepted the applications of those applicants who exchanged Facebook messages with their representatives, especially expressing their intention to pursue the case and to obtain just satisfaction (§41). Such interaction via the social network, evidenced by some of the extracts from the exchanged messages, was coupled with the fact that, with regard to these same applicants, the lawyers managed to provide the Court with details about their places of residence and residency status. For the ECtHR ‘such information is sufficient to establish that the above applicants have maintained contact with their legal representative and that they have an interest in pursuing the case before the Court’ (Ibid.).
Such approach had been criticised by Judge Keller as too strict and demanding. In her dissenting opinion, the Swiss judge calls attention to the fact that Facebook ‘is a popular medium for communication among young people such as the applicants’ and that social media platforms ‘should not be underestimated as means of communication between legal representatives and clients, particularly in difficult circumstances’ (§3). As to the specific facts of this case, she recalls that in N.D. & N.T., where the applicants were moving around, the Grand Chamber accepted that the contact kept with them via WhatsApp was sufficient to satisfy the criteria set forth in Article 37 ECHR (N.D. & N.T., GC, §69). Facebook – which, by the way, currently owns WhatsApp, as Judge Keller notes – is a tool that enables to maintain contact, even while moving around and without having a clearly identifiable and fixed address. Lastly, with regard to those applicants who were members of the Facebook group but did not exchange messages, she observes that the sole fact that they were included in the group points to an active contact with their lawyer. The latter, indeed, created an ad hoc group on the social network, invited the applicants, who accepted the invitation and decided to join, thereby showing their interest in pursuing the case in Strasbourg.
As these two recent decisions above show, the ECtHR appears to be fluctuating from a strict approach to that of a more flexible and human-rights oriented attitude (this may also depend on how familiar its members are with the use of social media: Judge Keller, for example, may be more experienced with social media platforms than other members of the bench). Consequently, the outcome is not always coherent: as for Facebook, the simple, ‘passive’ existence of a personal account is not enough to demonstrate a real applicant-lawyer contact (Asady), while, with regard to WhatsApp, the possibility to contact the applicant, whenever located, has led the Court to continue the examination of the case (N.D. & N.T.).
The Court seems ready to accept social media as a tool of communication for litigation purposes, but with a certain degree of caution. As to the introduction of an application and the need of the power of attorney, it is deemed sufficient to produce a written authority, without following, if need be, any particular prescribed form. However, there must be a clear expression of consent by a real, identified applicant, coupled with the lawyer’s acceptance to lodge and pursue the application.
As to the maintenance of contact throughout the proceedings, for the ECtHR, in principle, the fact that an applicant ‘virtually’ exists – behind an e-mail address, a phone number or a social media profile – is not per se sufficient to satisfy the conditions relating to Article 37 ECHR. Indeed, while the Court, on the one hand, seems ready to accept the use of social media in the lawyer-applicant relationship, on the other, it requires at least some signs of an active interaction between them, such as a conversation or an exchange of messages, which should be proven by producing some extracts.
Ultimately, if the Court is (or affirms to be) well aware of the difficulties faced by immigration lawyers to provide evidence of contact with their applicant – and, in light of that, the use of social media is allowed – at the same time, it seems rather demanding as to the ‘quality’ of such contact.