Kurski v. Poland: Ordering politician to publish apology for defaming Polish newspaper violated Article 10

By Ronan Ó Fathaigh

The European Court’s Fourth Section has held that a successful civil action by a newspaper against a Polish politician for alleging the newspaper had an “agreement” with an oil corporation to finance the newspaper’s “mass propaganda” against his political party, violated the politician’s freedom of expression. The opinion in Kurski v. Poland dealt with the unusual, but not rare, situation when a newspaper launches defamation proceedings against a politician for damaging its reputation, and the broader issue of ordering publication of apologies.

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Baka v. Hungary: judicial independence at risk in Hungary’s new constitutional reality

By Pieter Cannoot, academic assistant and doctoral researcher of constitutional law (Ghent University)

On 23 June 2016 the Grand Chamber of the European Court of Human Rights held that Hungary violated the right of access to a court (article 6, §1 ECHR) and the freedom of expression (article 10 ECHR) of András Baka, the former President of the Hungarian Supreme Court (now: Kúria). Several constitutional and legislative reforms led to the early termination of Mr. Baka’s mandate, expelling the critical judge from the highest office in the Hungarian judiciary, without providing any possibility for judicial review. The judgement is only the latest episode in a series of worldwide condemnations of Hungary’s new constitutional and human rights reality.

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Aldeguer Tomás v. Spain: a missed opportunity for the Court to provide guidance concerning the legal recognition of same-sex relationships

Last year, the Court issued the judgment of Oliari and Others v. Italy, described on this blog as “a stepping stone towards full legal recognition of same-sex relationships in Europe.”  In this judgment the Court recognized that Article 8 ECHR encompasses a positive obligation on States to put in place a legal framework providing for the legal recognition and protection of same-sex relationships. The Court in particular emphasised that such legal framework must at least provide for the “core rights relevant to a couple in a stable and committed relationship” – as opposed to supposedly “supplementary” rights, such as for example the question whether such legal framework should allow same-sex couples to marry, a question which the Court in its Schalk and Kopf judgment considered to fall within the State’s margin of appreciation. The Court however failed to provide any guidance on what should be understood under those enigmatic “core rights”.

In the recent case of Aldeguer Tomás v. Spain, the Court however fails to build upon the Oliari judgment in order to provide more guidance in the area of the legal recognition of same-sex relationships. The case concerns the inability of the surviving partner of a same-sex relationship to receive a survivor’s pension. Continue reading

European Court upholds criminal conviction for purchasing illegal firearm as a form of ‘check it out’ journalism in Salihu ao v. Sweden

By Dirk Voorhoof and Daniel Simons

Investigative journalism sometimes operates at the limits of the law. This is especially true of what could be called ‘check it out’ journalism: reporting in which a journalist tests how effective a law or procedure is by attempting to circumvent it. A recent decision shows that those who commit (minor) offences during this type of newsgathering activity cannot count on (major) support from the European Court of Human Rights (ECtHR). Journalists of the Swedish newspaper Expressen had undertaken to demonstrate the easy availability of illegal firearms by purchasing one. The Swedish courts were of the opinion that the editor and the journalists could not be exempted from criminal liability as they had wilfully breached the Swedish Weapons Act. In a unanimous decision, the ECtHR confirmed the necessity of the journalists’ criminal conviction. It declared the application for alleged breach of the right of journalistic newsgathering under Article 10 of the Convention manifestly ill-founded. Coming after the Grand Chamber’s judgment in Pentikäinen v. Finland (see our blog here) and in Bédat v. Switzerland (see our blog here), the decision in Salihu and others v. Sweden can be perceived as a new step in downsizing the rights of journalists with regard to their newsgathering activities. The Court’s ruling may also have a chilling effect on undercover investigative reporting.

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Fürst-Pfeifer v Austria: “A one-sided, unbalanced and fundamentally unjust judgment”?

By Stijn Smet

In Fürst-Pfeifer v Austria, the majority of the Fourth Section of the ECtHR ruled that the applicant’s right to private life was outweighed by the freedom of expression of an online publication and offline newspaper. In one of the fiercest and most poignant dissenting opinions I have read to date, judges Wojtyczek and Kūris label the majority judgment as “a one-sided, unbalanced and … fundamentally unjust judgment” that “panders to prejudice” against persons, like the applicant, “with a history of mental-health problems”. In this post, I consider the majority judgment in Fürst-Pfeifer as symptomatic of a broader problem in the Court’s case law: one-sided balancing in the resolution of conflicts between human rights. I tackle this problem, along with others, in my forthcoming book Resolving Conflicts between Human Rights: The Judge’s Dilemma (Routledge, 2016).

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Biao v. Denmark: Grand Chamber ruling on ethnic discrimination might leave couples seeking family reunification worse off

This guest post was written by Alix Schlüter, Ph.D. researcher at Bucerius Law School, Hamburg.

On May 24th 2016 the Grand Chamber found that the refusal to grant family reunion to a Ghanaian couple in Denmark violated Article 14 ECHR in conjunction with Article 8 ECHR. Overruling the Chamber’s judgment of 2014, the Court held by a majority of twelve votes to five that Danish Laws on Family Reunification in part constituted indirect discrimination on the basis of ethnic origin. In the past, the Court for the most part has confined itself to finding violations of the prohibition of discrimination on grounds of race or ethnic origin merely in certain tightly circumscribed case groups, namely cases concerning school segregation of Roma children and racist violence cases. Against that background, the ruling in Biao must be seen as a big step – all the more as critics have proclaimed that the Court might not yet have developed a satisfactory approach to cases of indirect discrimination.[1] The implementation of the judgment by the Danish government, however, has to be awaited with some uneasy suspense. It might result in leaving Danish nationals of non-Danish ethnic origin seeking family reunification worse off.

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(In)justice and admissibility: No standing for their representative, but effective protection for disappeared victims?

By Helena De Vylder

In the inadmissibility decision delivered on 26 April 2016 in the case of N. v. Russia and M. v. Russia, the Court rejects the petition for lack of standing of the applicants’ representative. The victims were unable to formally appoint their representative by signing a ‘power of attorney-document’, since they disappeared, allegedly as the result of a forced extradition to Uzbekistan. The Court considered that their representative could not lodge applications to the Court in their name, in the absence of a duly signed power of attorney to represent them, not just in the domestic proceedings, but also before the ECtHR. According to the Court, the vulnerable applicants did not risk being deprived of effective protection, since it was open to their immediate family to complain. The fact that the direct family members all reside in Uzbekistan, and were formerly questioned by the authorities there, were not considered to prevent the family members from applying. It will consequently never be examined whether the applicants’ abduction and transfer to their home state of Uzbekistan violate the prohibition of torture (article 3 ECHR).

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