E.S. v. Austria: Freedom of Expression versus Religious Feelings, the Sequel

By Stijn Smet, Assistant Professor of Constitutional Law at Hasselt University

In a recent judgment that has made headlines around the world, the ECtHR rules – not for the first time – that Austria can legitimately curb free speech to protect the religious feelings of believers. That the believers in E.S. v. Austria happened to be Muslims surely added to the international attention given to the judgment, especially the opportunistic outrage in certain outlets on the other side of the Atlantic.[1]

When I first read E.S. v. Austria, I was dumbfounded; struck by how contrived and nonsensical some of the ECtHR’s reasoning is. Then, when I read some scholarly comments on the judgment, I was puzzled; struck by how surprised some commentators were about other aspects of the Court’s reasoning. In my reading of E.S. v. Austria, the Court does not say much (or anything at all) it has not said before. Still, it’s remarkable how fervently the Court clings to a line of reasoning many had hoped to see abandoned by now. At the end of this comment, I will venture a guess as to why the Court found no violation of freedom of expression in E.S. v. Austria. Until then, I will explain why I was dumbfounded by the Court’s reasoning and puzzled by some of the commentary thereon. Continue reading

Prosecution of a publisher for ‘denigration’ of Turkey violated Article 10

This blog post was written by Ronan Ó Fathaigh

On 4 September 2018, the European Court of Human Rights delivered a unanimous judgment on Turkey’s controversial Article 301 insult law, and for the first time applied Article 46 of the European Convention, holding that amending the insult law would “constitute an appropriate form of execution” of the Court’s judgment. The Fatih Taş v. Turkey (No. 5) judgment is notable not only for its application of Article 46, but also given that it is the fifth set of criminal proceedings the Court has considered against an Istanbul-based publisher over the publication of various books and periodicals (see  Fatih Taş v. Turkey, Fatih Taş v. Turkey (No. 2), Fatih Taş v. Turkey (No. 3), and Fatih Taş v. Turkey (No. 4)). In all five judgments, including four in the past year alone, the Court has found violations of Article 10’s guarantee of freedom of expression, or Article 6 over the length of the criminal proceedings.   Continue reading

Comparing the Proposed EU Directive on Protection of Whistleblowers with the Principles of the European Court of Human Rights

By Vigjilenca Abazi (fellow at Yale Law School) and Flutura Kusari (legal advisor at the European Centre for Press and Media Freedom)

In April 2018, the European Commission put forward a much-anticipated ‘package of measures’ to strengthen whistleblower protection in the European Union. This includes a proposal for a Directive on the protection of persons reporting on breaches of Union law, which offers minimum standards of harmonization on whistleblower protection in certain fields of EU competences. After years of pro-whistleblowing campaigns by civil society and efforts by the European Parliament (EP) to induce the Commission to propose legislation, whilst the latter continuously rejected such calls, the mere fact that the Commission proposed a binding legal act is viewed as a significant progress. Whether the proposed Directive will be approved remains to be seen as it currently undergoes a lengthy process of review by the Council and the EP under the ordinary legislative procedure. Continue reading

Savva Terentyev v. Russia: criminal conviction for inciting hatred against the police violated a blogger’s freedom of expression

By Dirk Voorhoof (Human Rights Centre, Ghent University and Legal Human Academy)

In Savva Terentyev v. Russia the ECtHR has applied a very high level of free speech-protection for aggressively insulting and hostile comments about police officers, published on a weblog. The ECtHR observes that some of the wording in the blog post was offensive, insulting and virulent, but it found that the (emotional and sarcastic) comments as a whole could not be seen as inciting to hatred or violence. In contrast with the findings by the Russian authorities, the ECtHR is of the opinion that Terentyev’s blog did not pose “a clear and imminent danger” and could not be seen as stirring up “base emotions or embedded prejudices” attempting to incite hatred or violence against Russian police officers. Continue reading

Pussy Riot, the right to protest and to criticise the President, and the Patriarch: Mariya Alekhina and Others v. Russia

By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its judgment of 17 July 2018 the ECtHR has found various violations of the rights of the members of the feminist punk band Pussy Riot. The ECtHR found violations under Article 3 (prohibition of inhuman or degrading treatment), Article 5 § 3 (right to liberty and security) and 6 §§ 1 and 3 (c) ECHR (right to fair trial), in relation to the conditions of their transportation and detention in the courthouse, their pre-trial detention, the treatment during the court hearings (being exposed to public view in a glass dock surrounded by armed police), and restrictions to legal assistance. Most importantly the ECtHR found the criminal prosecution and prison sentence of the Pussy Riot members a breach of their freedom of expression under Article 10 ECHR. It also found that their right to freedom of expression has been violated on account of declaring the Pussy Riot video material available on the Internet as extremist and banning it. This blog focusses on the applicants’ rights under Article 10 ECHR. Continue reading

No overbroad suppression of extremist opinions and ‘hate speech’

By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its recent judgment in Stomakhin v. Russia, the European Court of Human Rights (ECtHR) launched the message to all domestic authorities to adopt a “cautious approach” in determining the scope of “hate speech” crimes and to avoid “excessive interference” with the right to freedom of expression, especially when action is taken against ‘hate speech’ or extremist opinions that are mere criticism of the government, state institutions and their policies and practices. The judgment of 9 May 2018, in which the ECtHR unanimously found a violation of Article 10 ECHR, sets an important standard: as judge Keller observed in her concurring opinion, “it is the first time that this Court has had to decide on a case which stems from the application of the Suppression of Extremist Activities Act (..), and will thus be the starting point of a body of case-law which will serve as a reference not only in future cases concerning Russia, but for all other Member States as well.” Continue reading

Resuscitating the Turkish Constitutional Court: The ECtHR’s Alpay and Altan Judgments

Written by Senem Gurol, PhD candidate at Ghent University

Introduction

After the failed coup d’etat in Turkey, critics have raised concerns about the European Court of Human Rights’ (ECtHR or the Court) ability and willingness to provide an effective remedy for the human rights violations occurred. These concerns arose from the Strasbourg Court’s recent inadmissibility decisions in the cases of Zihni, Çatal, and Köksal, which resulted in the Court sending the applicants back to exhaust the disputedly available and effective domestic remedies. Conversely, in the judgments of Şahin Alpay and Mehmet Altan, delivered on 20 March 2018, the ECtHR demonstrated a vigilant scrutiny over the protection of freedom of expression in Turkey which has deteriorated even further in recent years. These cases are also the first in which the Strasbourg Court has examined the validity of the derogation made on 21 July 2017 by Turkey under Article 15 of the Convention in relation to restrictions of other Convention rights, namely Articles 5 and 10. In this blogpost, I will focus on the ECtHR’s exercise of its subsidiarity role in the given cases and its impact on the functioning of the domestic remedies in Turkey. Continue reading