Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Procedural rights
Right to a fair hearing in civil proceedings (Article 6 § 1)
Applicability
The Baka v. Hungary[86] judgment concerned access to a court by a judge to challenge the termination of his mandate.
The applicant, a former judge of the European Court of Human Rights, publicly criticised, in his capacity as President of the Hungarian Supreme Court, proposed legislative reforms of the judiciary. Subsequent constitutional and legislative changes resulted in the premature termination of his mandate as President and excluded the possibility of judicial review of that termination.
In the Convention proceedings he mainly complained under Article 6 of a lack of access to a court and under Article 10 of a disproportionate interference with his freedom of expression[87]. The Grand Chamber found a violation of both Articles.
The judgment is interesting for its comprehensive review of the relevant Convention case-law, as well as of pertinent European and international standards on the independence and irremovability of judges.
The Court confirmed the application to disputes concerning judges of the Vilho Eskelinen[88] criteria, according to which a State can exclude the application of Article 6. Those criteria are: (a) the State’s national law must have expressly excluded access to a court for a relevant post or category of staff; and (b) that exclusion must be justified on objective grounds in the State’s interest. (The judgment provided a useful review of the cases concerning the application of those criteria to disputes concerning judges.) As to the first Eskelinen criterion, the Court found that, prior to the impugned legislative changes, the law had expressly provided a court president with the right to have any dismissal reviewed by a court, which judicial protection was in line with the various international and Council of Europe standards on the independence of the judiciary and on the procedural safeguards necessary on the removal of judges. That the applicant’s access to a court had been impeded by the transitional provisions of the new legislation did not amount to compliance with the first Eskelinen criterion: the impugned measure itself could not exclude the protection of Article 6. The Court also emphasised, in this regard, that any such exclusion would have to comply with the rule of law. To so comply, the exclusionary legal provision would have to be of general application whereas that provision was individualised in the present case. Accordingly, the Court found that the first of the Eskelinen criteria had not been satisfied and, since both criteria had to be fulfilled to legitimately exclude the protection of Article 6, it concluded that Article 6 § 1 applied to the dispute over the applicant’s mandate.
The Court was then able to deal briefly with the question of compliance with Article 6 § 1. Since it was doubtful that the exclusion of judicial review complied with the rule of law (see above) and given the growing importance (in international and Council of Europe instruments, as well as for international courts and bodies) of procedural fairness in cases involving the removal of judges, the Court concluded that the exclusion of the applicant from any judicial review of the premature termination of his mandate had violated his right of access to a court.
Access to a court [89]
The judgment in Al-Dulimi and Montana Management Inc. v. Switzerland[90] concerned access to a court to challenge the confiscation of assets pursuant to UN Security Council Resolution 1483 (2003).
The first applicant was (according to the UN Security Council (UNSC)) Head of Finance for the Iraqi secret service under the regime of Saddam Hussein. He was also the managing director of the second applicant company. Following the invasion of Kuwait by Iraq in 1990, the UNSC put in place a sanctions regime including Resolution 1483 (2003), pursuant to which the applicants were “listed” (2004) and their assets confiscated (2006) for later transfer to the Development Fund for Iraq. The applicants unsuccessfully challenged the confiscation orders before the Swiss courts, which considered that they were bound only to verify that the applicants’ names were on the Sanctions Committee’s list and that the assets belonged to them. The applicants complained under Article 6 that this amounted to a disproportionate restriction on their right of access to a court.
The Grand Chamber found that there had been a violation of the applicants’ right of access to a court guaranteed by Article 6. There being no causal connection between that finding and any damage, no award was made under Article 41 of the Convention.
The judgment turned on the assessment of the proportionality of the limitation on the applicants’ access to a court.
In the first place, the Court rejected the applicants’ argument that the procedural rights contained in Article 6 of the Convention constituted a norm of jus cogens so that Resolution 1483 (2003) lost the binding character it derived from Article 103 of the UN Charter. While the right to submit a civil claim to a judge was “one of the universally recognised fundamental principles of law”, it was not a norm of jus cogens as defined by the Vienna Convention on the Law of Treaties. Article 103 of the UN Charter had not therefore been displaced by Article 6 of the Convention.
The next question was therefore whether there was a conflict between Resolution 1483 (2003) and Article 6 of the Convention, in which case it would have been relevant to determine the hierarchy of Convention and UN Charter obligations having regard to Article 103 of the UN Charter. The Government argued that the UNSC Resolution had left them with no latitude so that there was a clear conflict of norms.
The novelty of this judgment is to be found in the Court’s response to this argument. The Court considered that, since Article 24 § 2 of the UN Charter required the UNSC to act in accordance with the purpose and principles of the United Nations (including that of international cooperation in promoting respect for human rights), there was a presumption that the UNSC did not wish to impose any obligation on States in breach of fundamental principles of human rights (the Court cited, mutatis mutandis, Al-Jedda v. the United Kingdom[91]). Unless therefore there was clear and explicit language in a resolution of the UNSC that it intended States to act contrary to international human-rights law, the Court had to presume, “in a spirit of systemic harmonisation”, that there was no conflict of obligations capable of engaging Article 103 of the Charter. Consequently, if the UNSC Resolution in question was ambiguous, the Court had, if possible, to interpret it in harmony with the Convention so as to avoid any such conflict of obligations.
In the present case, and similarly to Al-Jedda, the Court considered that nothing in Resolution 1483 (2003) explicitly prevented the Swiss courts from reviewing, in terms of human-rights protection, the measures taken at the national level pursuant to the Resolution. Where not explicitly excluded, the Resolution had to be understood as authorising judicial review to avoid any arbitrariness in its implementation, that standard of review being considered to strike a fair balance between the competing interests involved. Any implementation of the UNSC Resolution without allowing judicial review of arbitrariness would engage the State’s responsibility under Article 6 of the Convention. There being no conflict between the UN Charter and Convention obligations, it was unnecessary to consider the hierarchy of legal obligations to which Article 103 gave rise or, indeed, whether the equivalent-protection test (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland[92]) should be applied.
The Court concluded by finding that the applicants had had no opportunity to submit any evidence to the effect that their inclusion in the Sanctions Committee list was arbitrary. That it was impossible for them to challenge confiscation measures, pending for ten years, was “hardly conceivable in a democratic society”. Neither could the delisting procedures before the UN Sanctions Committee replace, or compensate for, the lack of appropriate national judicial scrutiny having regard to the “serious, reiterated and consistent” criticisms of those procedures in many international quarters. There had therefore been a violation of Article 6 of the Convention.
***
In its judgment in Lupeni Greek Catholic Parish and Others v. Romania[93] the Court considered whether a substantive-law criterion could, even when the interested parties have formal access to a court, amount to a limitation on access to a court to which Article 6 would apply.
By legislative Decree no. 126/1990, Romania decided that the legal situation of assets, which had been transferred from the Greek Catholic Church to the Orthodox Church in 1948, would be determined by joint committees made up of representatives of both Churches and those committees would take into account “the wishes of the worshippers in the communities in possession of [the] properties” (“worshippers’ wishes”). That Decree was amended in 2004 and 2005 to clarify, in case of disagreement in the joint committee, that the party seeking possession (the Greek Catholic Church) could bring judicial proceedings in the courts under the ordinary law.
The applicant parish was dissolved and its property was transferred to the Orthodox Church in 1948. The Greek Catholic applicants (parish, diocese and Archpriesthood) brought restitution proceedings. The first-instance court reviewed the title deeds and found in their favour. The Court of Appeal and the High Court, reversing that finding, took into account the worshippers’ wishes (that is, those of the Orthodox Church).
The applicants complained under Article 6, both alone and in conjunction with Article 14, of a breach of their right of access to a court, a breach of the principle of legal certainty and of the length of the proceedings. The Grand Chamber found violations of Article 6 as regards the reasonable-time requirement and the principle of legal certainty, and no violation as regards the other complaints.
(i) The case is interesting from the point of view of Romania and, notably, its legislative provisions concerning the sensitive socio-religious and historical question of the restitution of Greek Catholic property following the re-establishment of that Church in 1990. In particular, following on from the 2010 case of Sâmbata Bihor Greek Catholic Parish v. Romania[94], the Grand Chamber reviewed the application of the 2004 and 2005 amendments for compliance with Article 6. It found that the reliance by the civil courts on the criterion of the worshippers’ wishes (from Decree no. 126/1990) did not breach the applicants’ right of access to a court (but did breach the principle of legal certainty, see under “Fair trial” below).
(ii) The complaint concerning the right of access to a court is noteworthy. The Grand Chamber had to consider whether an applicable substantive-law criterion (the worshippers’ wishes) could, even when the parties had formal access to a court, amount to a limitation on access to which Article 6 applied, the argument being that reliance on this criterion rendered inevitable the outcome of the proceedings (in favour of the Orthodox Church).
The Grand Chamber reaffirmed its case-law (notably, Z and Others v. the United Kingdom[95], and Roche v. the United Kingdom[96]) that Article 6 had no application to substantive limitations on a right existing under domestic law.
In particular, it was clear that the applicants had had full access to a court: detailed examinations and reasoned decisions at three levels of jurisdiction took place without any procedural bar being invoked against them. It was equally clear that what was at stake (the worshippers’-wishes criterion) was a qualifying substantive right. The Grand Chamber reaffirmed that it could not create substantive rights through the interpretation of Article 6 of the Convention. The Grand Chamber thereby reaffirmed that the distinction between the procedural and the substantive, fine as that might be, continued to define the applicability of Article 6. The difficulties encountered by the applicants in securing the return of the property, concerning as they did the application of substantive law (worshippers’ wishes) unrelated to any procedural limitation on their right of access to a court, led to a finding of no violation of this aspect of Article 6 of the Convention.
***
The judgment in Arlewin v. Sweden[97] related to a decision of the national courts to decline jurisdiction in respect of the alleged defamatory content of a transfrontier programme service.
The applicant attempted to bring a private prosecution and a claim for damages for gross defamation against X, following the live broadcast in Sweden of a programme in which he was accused of, among other things, involvement in organised crime in the media and advertising sectors. The Swedish courts declined jurisdiction. In their view, and with reference to the relevant Swedish law, the programme had not originated in Sweden. It had been sent from Sweden by satellite to a British company which was responsible for the content of the programme and thereafter uplinked to a satellite, which had in turn transmitted the programme to viewers in Sweden. The court of appeal found that the applicant had not established that the decisions concerning the content of the programme had been taken in Sweden, and that the material before it indicated that it would be possible for the applicant to bring proceedings before a court in the United Kingdom.
In the Convention proceedings, the applicant essentially claimed that he had been denied access to a court in Sweden for a determination on the merits of his defamation action against X, in breach of Article 6 of the Convention.
The Court found for the applicant. Its judgment is of interest in that the Court had to address the relevance to its consideration of the applicant’s complaint of two instruments adopted within the framework of the European Union, namely the European Union Audiovisual Media Services Directive (Directive 2010/13/EU) and the Brussels I Regulation (Council Regulation (EC) No. 44/2001). The Court was not convinced by the Government’s argument that the Swedish courts’ jurisdiction was barred under the terms of the Directive. It considered that the Directive did not regulate the matter of jurisdiction when it came to defamation proceedings arising out of the content of a transborder programme service. Rather, jurisdiction under EU law was regulated by the Brussels I Regulation, and having regard to the facts, it would appear that both the United Kingdom and Sweden had jurisdiction over the subject matter of the applicant’s case.
That being said, the circumstances of the case suggested that there were strong connections between Sweden, on the one hand, and, on the other, the television programme and the British company responsible for the programme’s content and transmission to Sweden. The strength of those circumstances made it possible to conclude that there was a prima facie obligation on Sweden to secure to the applicant his right of access to a court. The Court had regard, among other considerations, to the following factors: the programme was produced in Sweden in the Swedish language, was backed by Swedish advertisers and was to be shown live to an exclusively Swedish audience. The alleged harm to the applicant occurred in Sweden. For the Court, except for the technical detail that the broadcast was routed via the United Kingdom, the programme and its broadcast were entirely Swedish in nature. Even though it was possible under the Brussels I Regulation, to require the applicant to bring proceedings before a court in the United Kingdom could not be said in the circumstances to have been a reasonable and practical alternative for him.
***
The decision in Tabbane v. Switzerland[98] concerned the resolution of a dispute by an international arbitration tribunal in Geneva with no right of appeal to the courts.
The applicant, a Tunisian businessman domiciled in Tunisia, entered into a contract with a French company based in France. The contract included a clause requiring any disputes between the parties to be referred to arbitration. By entering into the contract the applicant expressly and freely waived any right to appeal to the ordinary courts against the decision of the arbitration tribunal in the event of a dispute.
The French company subsequently lodged a request for arbitration with the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris. In accordance with the ICC Rules, the applicant was able to appoint an arbitrator of his choice. That arbitrator then agreed with the other two arbitrators that the arbitration would take place in Geneva, with the result that Swiss law became applicable to the arbitration proceedings. The arbitration tribunal found against the applicant, who lodged an application for review with the Swiss Federal Court. The Federal Court refused to examine the arbitration award, considering that the parties had validly waived their right to appeal against any decision issued by the arbitration tribunal in accordance with the Federal Law on private international law.
The case concerned the right of access to a court for the purposes of Article 6 § 1 of the Convention in the context of international arbitration. The decision develops the case-law relating to voluntary waivers of the right to appeal against an arbitration award. The Court found that, having regard to the legitimate aim pursued and the applicant’s contractual freedom, the restriction had not impaired the very essence of his right of access to a court.
Fairness of the proceedings
The judgment in Avotiņš v. Latvia[99] developed the case-law in two areas:
– the recognition and enforcement of a foreign judgment in a civil case delivered in the country of origin without duly summoning the defendant to appear and without securing his defence rights;
– with regard to EU law, the presumption of equivalent protection (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, cited above[100], and Michaud v. France[101]) and the principle of mutual recognition of judgments within the European Union.
By a judgment given in default of appearance, a Cypriot court ordered the applicant, a Latvian national, to pay a contractual debt to a Cypriot company. According to the applicant, he had not been duly informed of the proceedings in Cyprus. The claimant then sought recognition and enforcement of the Cypriot judgment in Latvia under the Brussels I Regulation. Before the Latvian courts, the applicant tried to prevent the judgment from being enforced, relying on Article 34 § 2 of the above-mentioned Regulation, according to which a judgment given in default in another member State could not be recognised if the defendant had not been served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. However, the Latvian Supreme Court dismissed this argument, stating that, since the applicant had not appealed against the judgment in Cyprus, his objections lacked relevance.
The applicant alleged a violation of his right to a fair hearing guaranteed by Article 6 § 1 of the Convention. The Grand Chamber found no violation of Article 6 § 1. It considered that there had indeed been a regrettable shortcoming because of the way in which the Supreme Court had dealt with the prima facie serious issue raised by the applicant. However, this shortcoming did not entail a violation of Article 6 § 1 as the applicant had had a real opportunity to appeal against the impugned judgment in Cyprus.
(i) The Grand Chamber judgment develops the Court’s case-law concerning the presumption of equivalent protection of fundamental rights by European Union law (known as the “Bosphorus presumption”, first defined by the Court in Bosphorus and then clarified in Michaud). It maintains the two conditions set forth in Michaud, that is, the “absence of any margin of manœuvre” on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by EU law. With regard to the first condition, the judgment gives a valuable indication as to how to interpret the “absence of any margin of manoeuvre” in the case of an EU regulation which, unlike a directive, is directly applicable in the member States. In order to know whether the State authorities have a “margin of manœuvre” in applying the specific provision at stake, regard must be had first and foremost to the interpretation of this provision given by the Court of Justice of the European Union (CJEU). As regards the second condition of the Bosphorus presumption, namely the deployment of the full potential of the supervisory mechanism provided for by EU law in the specific case, the judgment emphasises that this condition must be applied in a flexible way and without excessive formalism. More precisely, it cannot be understood as requiring the domestic court to request a preliminary ruling from the CJEU in all cases without exception, including those cases where no genuine and serious issue arises with regard to the protection of fundamental rights by EU law, or those in which the CJEU has already stated precisely how the applicable provisions of EU law should be interpreted in a manner compatible with fundamental rights.
(ii) This is the first Grand Chamber judgment on the application of the Bosphorus presumption to the mutual-recognition mechanisms which are founded on the principle of mutual trust between the member States of the European Union and are designed to be implemented with a high degree of automaticity.
On the one hand, the judgment reasserts the legitimacy of these mechanisms. On the other hand, it notes that their application in practice can endanger the respect of fundamental rights. As the CJEU itself has recently stated in Opinion 2/13 (paragraph 192, 18 December 2014, “when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that …, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU”. This could run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin. Therefore, the Court must satisfy itself that the mutual-recognition mechanisms do not leave any gap or particular situation which would render the protection of the human rights guaranteed by the Convention manifestly deficient. In doing so it must verify, in a spirit of complementarity, that the principle of mutual recognition is not applied automatically and mechanically to the detriment of fundamental rights.
The Grand Chamber judgment explains the action that must be taken by the domestic court in this context, namely, if a serious and substantiated complaint is raised before the court to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by EU law, then it cannot simply refrain from examining that complaint on the sole ground that it has to apply EU law.
***
In its judgment in Lupeni Greek Catholic Parish and Others[102], cited above, the Grand Chamber also considered, inter alia, whether there had been a breach of the principle of legal certainty in view of the conflicting decisions of the High Court regarding the interpretation of the provisions of a legislative decree governing the legal situation of assets which had been transferred from the Greek Catholic Church to the Orthodox Church in 1948.
The Grand Chamber reviewed the criteria which guide the Court in this respect (see, in particular, Nejdet Şahin and Perihan Şahin v. Turkey[103]): the Court must determine whether in the case-law of the national courts “profound and long-standing differences exist”, whether domestic law provides for a mechanism to overcome these inconsistencies, and whether that mechanism has been applied and, if appropriate, to what extent. In the present case, the Grand Chamber found that the relevant legislative decrees were not clear as to whether the worshippers’-wishes criterion could be applied during the proceedings before the civil courts, that, until 2012, the High Court had delivered judgments which were “diametrically opposed”, and that there had been a failure to use promptly the mechanism foreseen under domestic law. There had therefore been a breach of the principle of legal certainty guaranteed by Article 6 of the Convention.
_____________________
86. Baka v. Hungary [GC], no. 20261/12, ECHR 2016.
87. See under Article 10 (Freedom of expression) below.
88. Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007-II.
89. See also above Baka v. Hungary [GC], no. 20261/12, ECHR 2016.
90. Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, ECHR 2016.
91. Al-Jedda v. the United Kingdom [GC], no. 27021/08, ECHR 2011.
92. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI.
93. Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, ECHR 2016.
94. Sâmbata Bihor Greek Catholic Parish v. Romania, no. 48107/99, 12 January 2010.
95. Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 87 and 98, ECHR 2001-V.
96. Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X.
97. Arlewin v. Sweden, no. 22302/10, 1 March 2016.
98. Tabbane v. Switzerland (dec.), no. 41069/12, 1 March 2016.
99. Avotiņš v. Latvia [GC], no. 17502/07, ECHR 2016.
100. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI.
101. Michaud v. France, no. 12323/11, ECHR 2012.
102. Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, ECHR 2016.
103. Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, 20 October 2011.
Leave a Reply