The goal of this group work is to analyse cases from different countries and different political and societal contexts. The analysis will give us an insight into the arguments that the European Court of Human Rights uses when investigating and adjudicating a case.
Good to know
In assessing cases, the European Court of Human Rights (ECHR) has developed a standard approach , especially with respect to Articles 8 – 11 of the European Convention on Human Rights (ECHR) . These articles have two paragraphs. The first defines the right in a general manner which opens for interpretations. The second sets out permissible restrictions. The restrictions should be “prescribed by law” and be “necessary in a democratic society”. To establish legitimacy, the main function of the European Court and the European Convention is to ensure respect for the rule of law and to guarantee protection against arbitrary state power. The phrase “necessary in a democratic society” is one of the most important clauses in the ECHR and gives the Court the widest possible discretion in condemning rights infringements by states. The Court has held that the adjective “necessary” lies between indispensable and admissible, useful or desirable. The interference must be justified by a “pressing social need” . To decide whether such a need exists, facts of the case must be analysed, as well as any relevant circumstances in the country at the time of the infringement.
The Court has made many attempts at identifying the key features of a democratic society, where it has been maintained that freedom of expression is one of its essential foundations. Pluralism, tolerance and broadmindedness, and the right to a fair trial, are also especially mentioned.
Instructions
Divide the students into groups of four. Each group is given a case to analyse, where they shall answer these questions:
- Who are the parties in the case?
- Which article (s) in the European Convention is (are) claimed to have been violated?
- What is the case about? What is the problem? Give a short summary
- What is the Court´s decision and what are the main underlying arguments?
Each group will present its findings to the other groups. The duration of the group work might vary and can depend on the time available. If you have a lot of time, you could give the document with the case description in full length to the students beforehand (normally 8-10 pages). If time is limited, you could rather use the press releases of the cases (usually 1-2 pages)
All the cases in their full length and the press releases about them are easily accessible at the HUDOC database.
Four cases have been chosen for this group work. One of the cases has set precedence in its time and shows that the right to private life can prevail over the right to freedom of expression. The three other cases involve journalists and professional integrity.
Article 10 of the European Convention on Human Rights and Fundamental Freedoms is involved in all the cases:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (…)
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, and for the protection of the reputation or rights of others. (…)
CASE 1: Von Hannover versus Germany_2004
Link online: Von Hannover versus Germany_2004
This case is important for the following reasons:
- The parties in the case are Princess Caroline von Hannover, living in Monaco, and the German government. The case concerns pictures taken by journalists of the Princess and her family on vacation. Two articles are involved in the case: Right to private life (Art. 8) and Freedom of expression (Art. 10). The question centres on which right is most important, and whether the photographs taken of the Princess and her family are of public interest. This case is the third from the applicant, who started her battle for privacy back in 1992. The last decision, though not in favour of the Princess, is from 2012.
- Even though the Princess, as a public figure (a celebrity), perhaps should tolerate having more attention focused on her than an ordinary person, the Court will always consider if the information is necessary for society as a whole. It is important to bear in mind meanwhile that a politician, for example, is not a celebrity and does not have the same level of immunity from the public eye.
- This case created precedence and is historical because it brought the exposure of the private life of public persons to the surface and functioned as a starting point for discussion on journalist ethics worldwide.
CASE 2: Castells versus Spain 1992
Link online: Castells versus Spain 1992
This case is important for the following reasons:
- The parties in the case are Mr. Castells, an elected parliamentarian, and the Spanish government. The core of the case is an article written by Castells about the impunity of extremist groups that were behind attacks and killings in the Basque region since 1977, and the inefficient efforts of the Government in dealing with the attacks. Mr. Castells had been sued for insulting the Government through his critical opinions and for attacking the Government´s honour. Article 10, Freedom of expression, is involved.
- The Spanish government stressed that the right of freedom of expression is not absolute, it carries with it “duties” and “responsibilities” and, according to them, Mr Castells overstepped the limits of political debate.
- The Court recalled that the right of freedom of expression constitutes one of the essential foundations of a democratic society. It is applicable not only to “information” and “ideas” that are received as inoffensive, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. The Court also noted that the limits of permissible critics are wider with respect to the Government than in relation to a private citizen, or even a politician. In a democratic system, the actions of the Government must be subject to close scrutiny, not only by the judicial authorities, but also by the press and public opinion.
CASE 3: Krasulya versus Russia
Link online: Krasulya versus Russia
Russian translation (external website)
This case is important for the following reasons:
- The parties in the case are the editor-in-chief of a regional (Stavropol) newspaper, Mr. Krasulya, and the Russian government. The core of the case is an editorial published by Mr. Krasulya about the amendments to the Election Act and a critical appraisal of the local governor as a politician. Article 10, Freedom of expression, is involved.
- The Government’s claim was that Mr. Krasulya had to be found guilty of deliberately imparting false information damaging another person’s dignity, honour and reputation. Mr. Krasulya claimed that the criminal proceedings against him had been disproportionate and were not “necessary in a democratic society”. The subject of the publications was a politician, and the limits of acceptable criticism are wider when it comes to politicians as opposed to private persons. He also insisted that he had exercised his journalistic freedom, which opens for a degree of exaggeration and even provocation.
- The Court stated that strong reasons must be present to justify restrictions on political speech. If broad restrictions are imposed in individual cases, this would undoubtedly affect respect for the freedom of expression in general. In this particular case, a distinction has to be drawn between statements of fact and value judgments. While the existence of acts can be demonstrated, the truth of value judgments is not something that can be verified through proof. The requirement to prove the truth of a value is impossible to fulfil and thus infringes on the freedom of opinion.
CASE 4: Urper and Others v Turkey
Link online: Urper and Others v Turkey
No Russian translation is available.
This case is important for the following reasons:
- The parties in in this case are 26 Turkish nationals and the Turkish government. Applicants were the owners, executive directors, editors-in-chief, news directors and journalists of four daily newspapers. The publication of all four newspapers was suspended on a regular basis by the state authorities on the grounds that their material was propaganda in favour of a terrorist organisation. Article 10, Freedom of expression, is involved.
- The Government claimed that the applicants did not have any victim status as they had not been directly affected by the decisions to suspend the publication of these newspapers. It also stated that the national law had laid down the ban on the publication of the newspapers in order to protect national security, territorial integrity and public safety.
- The Court stated that the press plays an essential role in a democratic society. Moreover, although the press must not overstep certain boundaries , for example, to provide protection against threats of violence, disorder or crime, its duty is nevertheless to impart information and ideas on all matters of public interest, including divisive matters. The Court considered that less draconian measures could have been envisaged, such as the confiscation of particular issues of the newspapers or restrictions on the publication of specific articles. Instead, by suspending the publication and distribution, the margin for taking action was overstepped, which restricted the essential role of the press as a public watchdog in a democratic society. The practice of banning the future publication of entire periodicals went beyond any notion of “necessary” restraint and amounted to censorship.