Last Updated on April 21, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Freedom of expression (Article 10)
Applicability
In its judgment in Semir Güzel v. Turkey[209] the Court examined the question of conduct as a form of expression protected by Article 10.
The applicant was prosecuted for allowing participants at a general congress of a political party to speak in Kurdish during their interventions. The applicant, who was the Vice-President of the party, chaired the congress. At the relevant time, it was a criminal offence for a political party to use any language other than Turkish at congresses and meetings.
The Court found a breach of Article 10 since the interference was not “prescribed by law”. The case is interesting as regards the applicability of that provision. It had not been alleged that the applicant had taken the floor at the meeting in Kurdish, nor that he had encouraged those present to do so. The criminal charge against him related to his failure, as chairman, to intervene to prevent delegates from expressing themselves in Kurdish, despite warnings from a government official present at the meeting. The Court found that the applicant could rely on the protection of Article 10. It had regard to previous cases in which it had concluded that an individual’s acts or conduct could amount to a form of expression. In deciding whether an act or conduct fell within the ambit of Article 10, an assessment had to be made of the nature of the act or conduct in question, in particular of its expressive character seen from an objective point of view, as well as of the purpose or the intention of the person performing the act or engaging in the conduct in question (Murat Vural v. Turkey[210]).
In the circumstances of the applicant’s case, the Court observed that his conduct, viewed from an objective point of view, could be seen as an expressive act of defiance towards an authority representing the State. Furthermore, the Court noted that in the course of the criminal proceedings against him the applicant made it very clear that he had not used his power as chairman to intervene when certain delegates spoke in Kurdish because of his view that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene and to force people to speak in a language other than their mother tongue. For the Court, the applicant had exercised his right to freedom of expression within the meaning of Article 10, which provision applied in the case.
Freedom of expression
The Karácsony and Others v. Hungary[211] judgment related to procedural safeguards in disciplinary procedures against parliamentarians considered to have acted in a manner gravely offensive to parliamentary order.
The applicants, who were opposition members of parliament (MPs), were disciplined and fined for their conduct during a parliamentary session (they displayed banners during the session and one used a megaphone). They complained under Article 10 of the Convention alone and in conjunction with Article 13. The Grand Chamber found that there had been a violation of Article 10 (lack of effective and adequate safeguards) and that no separate issue existed under Article 13.
This was the first case where the Court was required to examine the extent to which a Parliament is entitled to autonomously regulate its own internal affairs and, in particular, to restrict the expression rights of MPs in Parliament. The judgment begins by setting out comprehensively the Court’s case-law concerning the various elements to be balanced in the Convention review of the interference with MPs’ expression rights.
(i) On the one hand, the procedural guarantees of Article 10 were to be taken into account when assessing the proportionality of such an interference (see, in particular, Association Ekin v. France[212]; Lombardi Vallauri v. Italy[213]; and Cumhuriyet Halk Partisi v. Turkey[214]), as was the Court’s case-law concerning the freedom of expression of MPs, especially in Parliament. In this latter respect, the Court made a novel distinction between restrictions on the substance of an MP’s expression – in respect of which Parliaments had very limited latitude – and controlling the means (“time, place and manner”) of such expression (which was in issue in the present case), which was to be independently regulated by Parliament and to which a broad margin of appreciation applied.
(ii) On the other hand, the Court detailed its understanding of the widely recognised principle of the autonomy of Parliament to, inter alia, regulate its own internal affairs which evidently extended to Parliament’s power to enforce rules aimed at ensuring the orderly conduct of parliamentary business, essential for a democratic society. This being the aim, the margin of appreciation accorded was a wide one. It was not, however, unfettered: the Grand Chamber clarified that parliamentary autonomy should not be used to suppress expression by minority MPs or as a basis for the majority to abuse its dominant position, so that the Court would examine with particular care any measure which appeared to operate solely or principally to the disadvantage of the opposition; nor could parliamentary autonomy be relied upon to justify imposing a sanction which was clearly in excess of Parliament’s powers, arbitrary or mala fide.
Secondly, as to the proportionality of the interference, the Grand Chamber concentrated its analysis on whether that restriction had been accompanied by “effective and adequate safeguards against abuse”, noting that it was dealing with an ex post facto penalty (imposed sometime after the conduct in question) and not a sanction required immediately.
It is noteworthy that, despite the above-noted broad margin of appreciation given the principle of parliamentary autonomy, the Grand Chamber found that certain procedural safeguards should, as a minimum, be available during such a parliamentary disciplinary process. The first was the “right for [an] MP to be heard in a parliamentary procedure” before any sanction was imposed. The Court noted, as a source supplemental to its own case-law, that the right to be heard increasingly appeared as a basic procedural rule in democratic States, over and above judicial procedures, as demonstrated, inter alia, by Article 41 § 2 (a) of the Charter of Fundamental Rights of the European Union. The implementation of that right to be heard had to be adapted to the parliamentary context to ensure the fair and proper treatment of the parliamentary minority and to avoid abuse by the dominant party so that, inter alia, the Speaker of Parliament had to act “in a manner that is free of personal prejudice or political bias”. The second procedural safeguard required was that the decision imposing a sanction on the MP should “state basic reasons” so the MP could understand the justification for the measure and so there could be public scrutiny of it.
Thirdly, worth mentioning also is the comprehensive comparative-law survey carried out by the Court as regards disciplinary measures applicable to MPs for disorderly conduct in Parliaments in the law of forty-four of the forty-seven member States of the Council of Europe, to which survey the Grand Chamber extensively referred in its judgment.
***
The Baka[215] judgment, cited above, concerned the termination of a judge’s mandate as a result of comments he had made in public.
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 complained, inter alia, under Article 10 of a disproportionate interference with his freedom of expression. The Grand Chamber found a violation of that provision.
One of the most interesting aspects of the complaint under Article 10 was the assessment of whether the termination of the applicant’s mandate amounted to an interference with his Article 10 rights or whether it merely affected his holding a public office (a right not guaranteed by the Convention). To answer this question the Court had to determine “the scope of the measure … by putting it in the context of the facts of the case and of the relevant legislation”. In addition, the Court had to decide on the standard of proof to be applied to this assessment which, based on its case-law, was to be the standard of “beyond reasonable doubt” as interpreted and applied by this Court. While the Court’s principles as to this standard of proof had most usually been applied in Article 2, 3 and 5 contexts, those principles were considered particularly relevant where, as in the present case, no domestic court had been able to examine the facts. Turning to those facts, the Court studied the sequence of events, found that there was a prima facie case in favour of the applicant’s version of events, considered that the burden of proof shifted to the Government (not least as the reasons behind the termination lay within the knowledge of the Government and had never been reviewed by a domestic court) and decided that the Government had not discharged that onus of proof (either through the reasons provided at the time domestically or to the Court) to explain why the termination of the applicant’s mandate had been necessary. The Court concluded that that termination was indeed prompted by his expressed views and criticisms so that it constituted an interference with his freedom of expression.
In addition, it is noteworthy that, while the Court had already expressed doubts as to the compliance of the impugned legislation with the rule of law, the Court was prepared to assume that it was nevertheless “prescribed by law” so as to allow it to proceed to the next stages of its analysis. In addition, while the Court considered that the termination of the applicant’s mandate was incompatible with the “legitimate aim” invoked by the Government, the Court considered it important nevertheless to go on to examine the necessity of the interference.
Finally, that necessity assessment is preceded by the Court’s confirmation of its previous case-law concerning the freedom of expression of judges. The Court was able to deal relatively briefly with the necessity of the interference, with certain evidently important factors being emphasised, such as the particular importance of the applicant’s office, the functions and duties of which included expressing his views on legislative reforms likely to have an impact on the judiciary and its independence. The applicant had stayed within this strictly professional perspective so his expression clearly concerned a debate on a matter of “great public interest”. This meant that the applicant’s “position and statements” called for a “high degree of protection”, for “strict scrutiny” of any interference therewith as well as for a “correspondingly narrow margin of appreciation”. Emphasising the importance of the independence and irremovability of judges, noting the chilling effect of the premature termination of the applicant’s mandate on other judges and given the lack of effective and adequate safeguards against abuse (see the violation of Article 6 § 1[216]) which are required by the procedural aspect of Article 10, the Court concluded that it had not been shown that the premature termination of the applicant’s mandate was necessary in a democratic society and found that there had been a violation of Article 10.
***
The judgment in Novikova and Others v. Russia[217] concerned persons who staged solo demonstrations in the street on subjects of public interest, holding up placards. The actions of each applicant were peaceful and did not impede the movement of pedestrians or road traffic.
The applicants complained that the authorities had regarded their individual actions as a collective public event under the law on public assembly and thus subject to prior notice. The police had therefore put a stop to their actions and taken them to the police station, where they were detained. Some of them were found guilty of an administrative offence and fined. For the applicants, it was, on the contrary, a static solo demonstration not subject to an obligation under domestic law to give prior notice.
This judgment, which concerned a very specific situation in matters of freedom of expression, is of some interest.
The Court viewed the applicants’ actions as a form of political expression (compare with Tatár and Fáber v. Hungary[218]) and examined the case under Article 10 taking account of case-law principles related to Article 11.
Particular attention was given to the question of the “legitimate aim” pursued in the cases of the applicants who had not been charged after being taken to the police station, because no judicial decision had been taken as to whether an offence had been committed so the justification for the measure could not be assessed. The Court was not persuaded that the impugned measures pursued the aim of the “prevention of disorder”, pointing out that the burden of proof was on the Government (Perinçek v. Switzerland[219]). It also had some doubt as to whether any legitimate aim, among those provided for by Article 10 § 2 permitting restrictions on freedom of expression, had been pursued by the measures in question and it was only with some reservation that it took into consideration the “prevention of crime”.
The Court also clarified the notion of “assembly” within the meaning of Article 11 of the Convention and its position concerning the requirement of prior notice in the event of a public demonstration by one or two people involving some interaction with passers-by.
***
The Shahanov and Palfreeman v. Bulgaria[220] judgment concerned disciplinary punishments imposed on prisoners who had complained in writing of misconduct by prison officers.
The applicants alleged that disciplinary punishments imposed on them by the prison authorities in response to written complaints they had made, through the proper channels, regarding misconduct on the part of prison officers had unjustifiably interfered with the exercise of their right to freedom of expression.
In studying the proportionality of the interference, the Court reiterated its earlier case-law to the effect that in the context of prison discipline, regard must be had to the particular vulnerability of persons in custody, which means that the authorities must provide particularly solid justification when punishing prisoners for making allegedly false accusations against the prison authorities (see Marin Kostov v. Bulgaria, cited above[221], with further references).
In finding that the applicants’ Article 10 rights had been violated, the Court had regard to the following considerations: while the allegations were quite serious, the language used was not strong, vexatious or immoderate; the statements had not been made publicly; and the statements were made by the applicants in the exercise of the possibility in a democratic society governed by the rule of law for a private person to report an alleged irregularity in the conduct of a public official to an authority competent to deal with such an issue. On that last point, the judgment is of interest in that the Court noted that the possibility to report alleged irregularities and to make complaints against public officials takes on an added importance in the case of persons under the control of the authorities, such as prisoners. For the Court, prisoners should be able to avail themselves of that opportunity without having to fear that they will suffer negative consequences for doing so (see Marin Kostov, § 47). It placed emphasis on the fact that the courts which heard the applicants’ appeals did not touch upon, let alone substantively discuss, the question whether the disciplinary punishments interfered with the applicants’ right to freedom of expression and, in this respect, the right to make complaints.
Freedom of the press
One of the issues in the Bédat v. Switzerland[222] judgment concerned the balancing of a journalist’s interest in publishing against the competing (private and public) interests protected by the secrecy of criminal investigations.
The applicant, who was a journalist, was convicted and fined for publishing information obtained by a third party and passed to the applicant that was covered by the secrecy of criminal investigations in pending proceedings. His domestic appeals were unsuccessful. The Grand Chamber found no violation of Article 10 of the Convention.
(i) Whether an applicant is the journalist or the victim of impugned press coverage, the Court has consistently accorded equal respect to the competing Article 10 rights (the right to inform the public and the public’s right to be informed) and Article 8 rights (private life), and it has applied the same margin of appreciation to the relevant balancing exercise.
For the first time, the Court stated that the same approach is to be applied in cases, such as the present one, where the Article 10 rights of an applicant journalist are to be balanced against the competing Article 6 rights of the accused (including the right to an impartial tribunal and to be presumed innocent) in the pending criminal proceedings about which information, covered by the secrecy of criminal investigations, had been disclosed.
(ii) The judgment also notes several additional and parallel public interests, also served by the secrecy of criminal investigations, to be taken into account in the overall balancing exercise: the confidence of the public in the role of the courts in the administration of justice and maintaining “the authority and impartiality of the judiciary” including its decision-forming and decision-making processes; the effectiveness of criminal investigations; and the administration of justice (avoiding, for example, witness collusion and evidence being tampered with).
(iii) Just as it did in the cases of Axel Springer AG v. Germany[223] and Stoll v. Switzerland[224], the Court listed the criteria to be applied when carrying out this balancing exercise between Article 10, on the one hand, and the public and private interests protected by the principle of the secrecy of criminal investigations, on the other. Those criteria were drawn from the Court’s jurisprudence and from the legislation of thirty Contracting States surveyed (for the purposes of the present case) and they were as follows: how the applicant journalist came into possession of the secret documents; the content of the impugned article; the contribution of the article to a public debate; the influence of the article on the criminal proceedings; any infringement of an accused’s private life; and the proportionality of the penalty imposed.
(iv) In commenting on the fourth criterion, the Court found that the article was clearly slanted against the accused. It is interesting to note that the Court considered that, published as it was during the investigation, the article risked influencing the outcome of the proceedings including the work of the investigating judges and of the trial court, irrespective of the composition of that court (professional judges or not).
Moreover, the Court went on to make clear that the Government did not have to prove ex post facto actual influence on the proceedings: rather the risk of such influence could justify per se the adoption of protective measures such as rules preserving the secrecy of investigations. The Court concluded by approving the Federal Court’s view that secret case-file elements had been discussed in the public sphere during the investigation and before the trial, out of context and in a manner liable to influence the investigating and trial judges.
***
The Ziembiński v. Poland (no. 2)[225] judgment concerned a journalist’s use of satire and irony when commenting on a matter of public interest.
The applicant, a journalist, published a satirical article in which he mocked the district mayor and two of his officials for their endorsement of a quail-farming project intended to tackle local unemployment. He referred to the district mayor and one official (without using their names) as “dull bosses”. He characterised another official as “a numbskull”, “a dim-witted official” and “a poser”. The mayor and the two officials brought private prosecution proceedings and the applicant was ultimately convicted of the offence of insult. The domestic courts found that the applicant had exceeded the limits of fair criticism and had resorted to language which was disrespectful and offensive and harmful to the claimants’ human dignity.
The applicant contended that there had been a violation of Article 10. The Court agreed with him. Its judgment is of interest for the following reasons.
In the first place, the judgment afforded the Court another opportunity to observe that satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with the right to use this means of expression should be examined with particular care (see Vereinigung Bildender Künstler v. Austria[226]; Alves da Silva v. Portugal[227]; and Eon v. France[228]). It noted that the domestic courts had not taken sufficient account of the satirical nature of the text and the underlying irony when analysing the applicant’s article (see Sokołowski v. Poland[229]).
Secondly, it is interesting to observe that the Court did not dwell on each specific term used by the applicant in order to determine its acceptability. It had no doubt that the applicant’s remarks, as used in the article, remained within the limits of acceptable exaggeration.
Thirdly, the judgment illustrates the importance of the context in which words are used. The instant case concerns press freedom and recourse to satire to impugn the conduct of elected or public officials. The case can be distinguished from that in Janowski v. Poland[230] in which the Court found no breach of Article 10. In Janowski, the applicant was convicted of insulting municipal guards by calling them “oafs” and “dumb” during an incident which took place in a square in the presence of members of the public. The need to protect the interests of the municipal guards did not have to be weighed in relation to the interests of the freedom of the press or of open discussion of matters of public concern since the applicant’s remarks were not uttered in such a context.
Freedom to receive and impart information
The judgment in Magyar Helsinki Bizottság v. Hungary[231] raised the issue of the extent to which Article 10 guarantees a right of access to State-held information.
The applicant NGO requested access to police-department files containing information on the appointment and names of public defenders, in order to complete a survey in support of proposals for the reform of the public defenders’ scheme. While most police departments complied, two did not and the ensuing domestic proceedings by the NGO for access to those files were unsuccessful. The applicant NGO complained that that denial of access was a violation of its rights guaranteed by Article 10 of the Convention.
(i) This judgment is noteworthy for its detailed review and clarification of the Court’s case-law on the extent to which Article 10 guarantees a right of access to State-held information. While the Court did not recognise a separate right of access as such, it clarified the Leander v. Sweden[232] principles accepting that, in certain circumstances, such a right could be drawn from the right to freedom of expression and it set out the criteria by which this assessment could be made on a case-by-case basis.
In particular, the “standard jurisprudential position”, set out in Leander and confirmed in, inter alia, Guerra and Others v. Italy[233], Gaskin v. the United Kingdom[234] and Roche[235], cited above, was that Article 10 neither conferred a right of access to State-held information nor embodied a corresponding obligation on the authorities to provide it. That did not, the Grand Chamber found, exclude the existence of such a right or obligation in other circumstances. That was already the case in cases such as Gillberg v. Sweden[236], where one arm of State had recognised a right to receive information but another arm had frustrated or failed to give effect to that right.
The Grand Chamber therefore examined whether a right of access could be gleaned from Article 10 in the present set of circumstances. To so do it reviewed the travaux préparatoires concerning Article 10 and the opinions of the Court and Commission on draft Protocol No. 6, which allowed it to find that there might be weighty arguments in favour of reading into Article 10 an individual right of access to State-held information and a corresponding obligation on the State to provide it. The comparative review of thirty-one Contracting States, the emerging consensus at the international level, the EU Charter of Fundamental Rights and other EU provisions as well as various Council of Europe instruments, also led the Grand Chamber to find that there was now a “broad consensus, in Europe (and beyond), on the need to recognise an individual right of access to State-held information in order to assist the public in forming an opinion on matters of general interest” (paragraph 148 of the judgment). The Court was not therefore “prevented from interpreting Article 10 § 1 … as including a right of access to information”.
Having regard to the Court’s case-law (which had evolved in favour of the recognition, under certain conditions, of a right to freedom of information, not as a separate right, but as an inherent element of the freedom to receive and impart information enshrined in Article 10), as well as to the European and international trends noted above, the Court considered that the time had come to clarify the Leander principles. The Grand Chamber did so as follows. A right of access to State-held information and the corresponding obligation might arise, firstly, where disclosure of the information had been imposed by judicial order (as had happened in Gillberg, although not in the instant case) and, secondly, where “access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression and, in particular ‘the freedom to receive and impart information’ and where its denial constitutes an interference with that right” (this situation was relevant to the instant case).
The Grand Chamber then set down the criteria to be applied to determine, on a case-by-case basis, whether a particular denial of access would amount to an interference with freedom of expression rights: the purpose of the information requested; the nature of the information sought; the role of the applicant; and whether the information was ready and available. Applying those criteria, the Grand Chamber found that the failure to provide the information sought by the applicant NGO constituted an interference with its rights protected by Article 10 of the Convention.
(ii) In determining whether that interference had been necessary in a democratic society, the Grand Chamber was required to balance the applicant NGO’s expression rights against the protection to be accorded to the data sought by it.
The Grand Chamber found (having referred to the Council of Europe’s Data Protection Convention[237] and the Court’s case-law) that the Article 8 interests invoked were “not of such a nature and degree” as could warrant bringing Article 8 into play in the balancing exercise. In so finding, it had regard to the context (the data related to the conduct of professional activities in public proceedings did not concern the substance of that work and did not, therefore, affect their private lives) and to the fact that disclosure of this information could be considered to have been foreseeable.
Although Article 8 did not therefore come into play, the protection of the data remained a legitimate aim permitting only a proportionate restriction on expression. Finding that the public interest involved outweighed the need to protect data “not outside the public domain”, the Grand Chamber concluded that there had been a violation of Article 10 of the Convention.
***
The Kalda v. Estonia[238] judgment concerned restrictions placed on the applicant prisoner’s access to certain Internet sites containing legal information.
The applicant, a prisoner, complained that he was refused access to several Internet sites and was thereby prevented from carrying out legal research. The sites included the website of the local information office of the Council of Europe and certain, but not all, State-run databases containing legislation and judicial decisions. In the appeal proceedings brought by the applicant, the Supreme Court concluded that granting access to Internet sites beyond those authorised by the prison authorities could increase the risk of prisoners engaging in prohibited communication, thus giving rise to a need for increased levels of monitoring of their use of computers.
The applicant relied on Article 10 of the Convention. The Court agreed with him that the prohibition on access to the sites in question interfered with his right to receive information which was freely available in the public domain. On that particular point, it is interesting to observe that the Court viewed the interference not in terms of the authorities’ refusal to release the information requested by the applicant, but in terms of a prohibition on granting him access by means of the Internet to information which others were willing to communicate, including the State via its official legal-information websites.
It reiterated in this connection that the Internet played an important role in enhancing the dissemination of information in general (see in this connection, Delfi AS v. Estonia239, and Ahmet Yıldırım v. Turkey[240]) and, of relevance to prisoners, that an increasing amount of services and information is only available on the Internet. This included the Court’s judgments and translations of them into the official languages of Contracting States including, as regards the applicant, in Estonian.
That said, it is noteworthy that the Court stressed that Article 10 cannot be interpreted as imposing a general obligation on States to provide access to the Internet, or to specific Internet sites, for prisoners. The facts of the particular case submitted to its examination would appear to be decisive in this connection.
In the instant case, in finding that the State had breached the applicant’s right under Article 10 of the Convention, the Court laid emphasis on the fact that the law of the respondent State did not prevent prisoners from having access to all legal-information sites. As to the sites to which access was denied, it observed that they essentially stored information relating to fundamental rights, including the rights of prisoners. Such information was used by the courts of the respondent State and was of relevance to the applicant when it came to asserting and defending his rights before the domestic courts. It is of interest that the Court gave prominence to the fact that, when the applicant lodged his complaint with the domestic courts, translations of the Court’s judgments against the respondent State into Estonian were only available on the website of the local Council of Europe Office, to which he was denied access.
The Court had to address the Government’s argument that there were security and cost implications in allowing prisoners extended access to Internet sites of the type denied to the applicant. Its response was that their authorities had already made security arrangements for the use of the Internet by prisoners and had borne the related costs. In examining the applicant’s case, it found that the domestic courts had not given due consideration to any possible security risks attendant on the applicant’s use of the websites, bearing in mind that they were run by the Council of Europe and by the State itself. The reasons given by the domestic courts, albeit relevant, were not sufficient for the purposes of the second paragraph of Article 10.
The judgment is noteworthy in that the Court, while affirming that Contracting States are not obliged to grant prisoners access to the Internet, may be in breach of Article 10 of the Convention where they are willing to allow prisoners access to the Internet, but not to specific sites. It would appear from the judgment that it is for the domestic courts to provide relevant and sufficient reasons for any restrictions imposed on access to such sites, having regard to their nature and purpose.
***
The judgment in Pinto Coelho v. Portugal (no. 2)[241] concerned the unauthorised broadcasting of a report containing audio extracts from a court recording of a hearing. In the retransmission, the voices of the three judges sitting on the bench and of the witnesses were digitally altered. These extracts were followed by comments by the applicant, a journalist specialising in court cases, referring to a miscarriage of justice. Following the broadcast, the president of the chamber which had tried the case submitted a complaint to the prosecutor’s office. The persons whose voices had been broadcast did not, however, complain to the courts of an infringement of their right to be heard. The applicant was convicted of breaching the statutory prohibition on broadcasting audio-recordings of a hearing without permission from the court and ordered to pay a fine.
The applicant complained of a breach of her right to freedom of expression.
The interest of the case lies in the fact that it pitches competing interests against each other: on the one hand, the rights of the press to inform the public and of the public to be informed and, on the other, the right of trial witnesses to be heard and the need to ensure the proper administration of justice.
The Court had regard to the determination of the superior courts of the member States of the Council of Europe to respond forcefully to the harmful pressure the media could put on civil parties and defendants and which was liable to undermine the presumption of innocence. Nevertheless, a number of factors swayed the balance in favour of finding a violation of Article 10 of the Convention.
(i) The trial was already over when the report was broadcast.
(ii) The hearing had been public and none of those concerned had used the remedy available to them for an infringement of their right to be heard. For the Court, the onus had primarily been on them to ensure respect for that right.
(iii) Additionally, the voices of those taking part in the hearing had been distorted to prevent them from being identified. In this connection, it is noteworthy that the Court found that Article 10 § 2 of the Convention did not provide for restrictions on freedom of expression based on the right to be heard, as that right was not afforded the same protection as the right to reputation. It was unclear why the right to be heard ought to prevent the broadcasting of sound clips from a hearing held in public. In sum, the Government had not given sufficient reasons to justify the fine imposed on the applicant.
***
The Brambilla and Others v. Italy[242] judgment concerned the conviction of journalists following their interception of confidential police radio communications.
With a view to arriving speedily at crime scenes the applicants, all journalists, intercepted police radio communications. Reaching a crime scene quickly meant that they could file promptly their reports on the incident with the local newspaper which employed them. They were eventually convicted of a criminal offence since domestic law treated such communications as confidential. They received prison sentences of one year and three months (first two applicants) and six months (third applicant), which were later suspended.
The Court did not accept their submission that there had been a breach of their right to impart information to the public, as guaranteed by Article 10 of the Convention.
The following points may be highlighted.
In the first place, the Court left open the question whether Article 10 applied on the facts of the case. It preferred to assume applicability of Article 10 and concentrated on the necessity of the interference.
Secondly, it applied to the applicants’ case the principles which the Grand Chamber recently set out in Pentikäinen v. Finland[243], namely:
“In particular, and notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence (see, among other authorities, mutatis mutandis, Stoll [v. Switzerland [GC], no. 69698/01], § 102[, ECHR 2007-V]; Bladet Tromsø and Stensaas [v. Norway [GC], no. 21980/93], § 65 [, ECHR 1999-III]; and Monnat v. Switzerland, no. 73604/01, § 66, ECHR 2006-X). In other words, a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions.”
and
“ …, it has to be emphasised that the concept of responsible journalism requires that whenever a journalist – as well as his or her employer – has to make a choice between the two duties and if he or she makes this choice to the detriment of the duty to abide by ordinary criminal law, such journalist has to be aware that he or she runs the risk of being subject to legal sanctions, including those of a criminal character, by not obeying the lawful orders of, inter alia, the police.”
With those principles in mind, the Court found that the applicants had not been sanctioned for publishing scene-of-crime reports in their newspaper nor for imparting information on crime to the public. They had breached the law by being in possession of and using a device to listen in to communications deemed to be confidential under Italian law and justified by the domestic courts with reference to, among other things, the prevention of crime. As to the severity of the sentences imposed, it observed that they had been suspended.
This is the third case in which the Court has of late applied the Pentikäinen principles to a situation in which applicant journalists have sought to justify their breach of domestic criminal-law provisions with reference to the pursuit of their journalistic activities (see Erdtmann v. Germany[244], and Salihu and Others v. Sweden[245]). It is of interest that this is the first case in which the Court has left open the applicability of Article 10.
_____________________
209. Semir Güzel v. Turkey, no. 29483/09, 13 September 2016.
210. Murat Vural v. Turkey, no. 9540/07, § 54, 21 October 2014.
211. Karácsony and Others v. Hungary [GC], no. 42461/13, ECHR 2016.
212. Association Ekin v. France, no. 39288/98, § 61, ECHR 2001-VIII.
213. Lombardi Vallauri v. Italy, no. 39128/05, § 46, 20 October 2009.
214. Cumhuriyet Halk Partisi v. Turkey, no. 19920/13, § 59, ECHR 2016.
215. Baka v. Hungary [GC], no. 20261/12, ECHR 2016. See also under Article 6 above.
216. See under Article 6 (Right to a fair hearing in civil proceedings) above.
217. Novikova and Others v. Russia, nos. 25501/07 and 4 others, 26 April 2016.
218. Tatár and Fáber v. Hungary, nos. 26005/08 and 26160/08, 12 June 2012.
219. Perinçek v. Switzerland [GC], no. 27510/08, ECHR 2015 (extracts).
220. Shahanov and Palfreeman v. Bulgaria, nos. 35365/12 and 69125/12, 21 July 2016.
221. Marin Kostov v. Bulgaria, no. 13801/07, § 44, 24 July 2012.
222. Bédat v. Switzerland [GC], no. 56925/08, ECHR 2016.
223. Axel Springer AG v. Germany [GC], no. 39954/08, 7 February 2012.
224. Stoll v. Switzerland [GC], no. 69698/01, ECHR 2007-V.
225. Ziembiński v. Poland (no. 2), no. 1799/07, 5 July 2016.
226. Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 33, 25 January 2007.
227. Alves da Silva v. Portugal, no. 41665/07, § 27, 20 October 2009.
228. Eon v. France, no. 26118/10, § 60, 14 March 2013.
229. Sokołowski v. Poland, no. 75955/01, § 46 in fine, 29 March 2005.
230. Janowski v. Poland [GC], no. 25716/94, ECHR 1999-I.
231. Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, ECHR 2016.
232. Leander v. Sweden, 26 March 1987, Series A no. 116.
233. Guerra and Others v. Italy, 19 February 1998, Reports of Judgments and Decisions 1998-I.
234. Gaskin v. the United Kingdom, 7 July 1989, Series A no. 160.
235. Roche v. the United Kingdom [GC], no. 32555/96, ECHR 2005-X.
236. Gillberg v. Sweden [GC], no. 41723/06, 3 April 2012.
237. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, ETS No. 108.
238. Kalda v. Estonia, no. 17429/10, 19 January 2016.
239. Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015.
240. Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012.
241. Pinto Coelho v. Portugal (no. 2), no. 48718/11, 22 March 2016.
242. Brambilla and Others v. Italy, no. 22567/09, 23 June 2016.
243. Pentikäinen v. Finland [GC], no. 11882/10, §§ 91 and 110, ECHR 2015.
244. Erdtmann v. Germany (dec.), no. 56328/10, 5 January 2016.
245. Salihu and Others v. Sweden (dec.), no. 33628/15, 10 May 2016.
Leave a Reply