Political speech under threat?

In the case of Fleury v. France of 11 May 2010, the European Court of Human Rights held that the freedom of expression of a politician, member of the opposition on municipal level, had not been violated by his criminal conviction for defamation of a public official, the mayor of the municipality.

The ruling of the Court in this case baffled me. Quite frankly, I do not agree with the judgment, nor do I understand it as it does not seem to fit into the extensive protection the Court offers to political speech. In that context, it is all the more remarkable that the judgment has been ruled unanimously. I have heard people describing the section that passed this judgment, the Fifth Section, as being one of the more conservative sections of the Court. I have also heard people argue that, upon examination of the case-law of the Court, it becomes apparent that this section hardly ever finds a violation against France. Could there lie an element of truth in this strong statement? This case would surely suggest so. And if that is the case, it is unacceptable and quite damaging to a Court that is expected to offer consistency throughout its jurisprudence and is regarded by many – also inside the Court itself – as playing a vital role in the harmonization of human rights protection in Europe.

Continue reading

Dutch Holocaust cartoon case: a valuable lesson for the Strasbourg Court?

This guestblog is written by our colleague Hannes Cannie*

The criminal tribunal of Utrecht (the Netherlands) has rendered an interesting judgment (22 April 2010) in a case in which an alleged discriminatory cartoon was at stake. The Dutch branch of the Arab European League (hereafter, AEL), a movement in Belgium and the Netherlands that aims to advance the interests of Arab immigrant communities, had published different cartoons on various websites. One of these showed two Jewish men who study a pile of corpses lying under a sign with ‘Auswitch’ on it. One man says: ‘I don’t think they are Jews’, while the other replies: ‘We have to get to the 6.000.000 somehow’. After a complaint was filed, the Public Prosecutor eventually decided to start criminal proceedings against AEL and its president, who designed the cartoon, grounded on Article 137c of the Dutch Criminal Act. This Article penalizes the crime of public insult of a group of human beings, amongst others because of their race or religion.

Continue reading

Of Rights and Interests

On 30 March 2010 the European Court of Human Rights released its judgment in the case of Petrenco v. Moldova. The case concerned a newspaper article in which negative remarks were made about the applicant’s competence as a historian. The article further alleged that the applicant, a university professor and Chairman of the Association of Historians, had achieved his professional status due to cooperation with the Soviet secret services (KGB). The facts of the case were thus similar to those of an earlier case, Petrina v. Romania (14 October 2008, App. No. 78060/01), concerning a newspaper article alleging the involvement of the applicant with the former Romanian secret service Securitate.

In both cited cases, the person concerned instituted defamation claims at the domestic level. However, since those claims failed when it came to the assessment of the allegations of cooperation with the secret services, the applicants invoked a violation of art. 8 in front of the European Court of Human Rights.

I personally find these types of cases interesting, because they hold the possibility of offering further insight into the Court’s reasoning on the right to reputation under art. 8 and on the conflict that exists between the right to freedom of expression and the right to reputation in defamation cases.

Continue reading

Some clarity in defamation case-law

On 11 February 2010, the European Court of Human Rights released an interesting judgment in an art. 10 defamation case, Fedchenko v. Russia (no. 2). The case concerned a conviction for defamation of Mr. Fedchenko, the editor of a regional newspaper, after an article had been published in his newspaper in which allegations of mismanagement were made against the Head of a regional Department of Education.

The judgment contains several interesting elements. However, here I will only discuss it in light of the standards of proof required from defendants in defamation cases. In this context, the Court traditionally makes a division between statements of fact and value judgments, the first being susceptible to proof, while the latter are not. The case-law of the Court in general is a bit sketchy in this respect. The Court has in the past sometimes demanded complete proof of factual allegations, while it at other times has found varying degrees of “a sufficient factual basis” to suffice. In Fedchenko v. Russia (no. 2), the Court sheds some light in this respect by clearly advocating the use of lenient standards of proof in certain circumstances.

Continue reading