Convention on the Rights of Persons with Disabilities<\/a>, which has been ratified by forty-four of the forty-seven Council of Europe member States, including Finland, States Parties must \u201creview the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person\u2019s autonomy, will and preferences\u201d[115].<\/p>\nThe A.P., Gar\u00e7on and Nicot v. France[116] judgment concerned the making of a change of gender in civil-status documents conditional on completion of sterilisation surgery or treatment entailing a very high probability of sterility.<\/p>\n
The three applicants were transgender persons. They claimed that the refusal of their request to have a change of gender recorded on their birth certificates amounted to a violation of Article\u00a08, since persons wishing to do so had to demonstrate in support of such a request that the change in their appearance was irreversible (second and third applicants) and that they actually suffered from the gender-identity disorder in question (second applicant). Lastly, the first applicant contested the requirement that he undergo a medical examination in order to establish the change in his appearance.<\/p>\n
The Court had previously found Article 8 to apply to legal recognition of the gender identity of transgender persons having undergone reassignment surgery (H\u00e4m\u00e4l\u00e4inen v. Finland[117]), and to the conditions of eligibility for such surgery (Schlumpf v. Switzerland[118], and Y.Y. v. Turkey[119]). In the present case it found, with regard to legal recognition of the gender identity of transgender persons who had not undergone gender reassignment surgery or did not wish to do so, that gender identity, as a component of personal identity, came within the scope of the right to respect for private life. The \u201cprivate life\u201d aspect of Article 8 was therefore applicable.<\/p>\n
Following similar reasoning to that adopted in H\u00e4m\u00e4l\u00e4inen, cited above, the Court examined the applicants\u2019 complaints through the lens of the State\u2019s positive obligation to ensure respect for their right to private life. In order to ascertain whether that obligation had been complied with, the Court sought to establish whether the State, in imposing the conditions complained of on the applicants and in view of the margin of appreciation left to it, had struck a fair balance between the general interest in ensuring consistency in civil-status records and the interests of the applicants.<\/p>\n
As to the first condition complained of, the Court considered that the requirement for transgender persons wishing to have their gender identity recognised to demonstrate \u201cthe irreversible nature of the change in appearance\u201d meant that the applicants had been required to undergo sterilisation surgery or a course of treatment which, owing to its nature and intensity, would in all likelihood result in sterility.<\/p>\n
Referring to the comparative law materials provided by the third-party interveners, the Court noted that the Contracting States held differing views on the sterilisation requirement and that no consensus had emerged on the subject. In principle, this finding thus entailed a wider margin of appreciation, especially since a public interest (civil status) was involved. Nevertheless, in view of the particularly fundamental nature of an individual\u2019s identity, which was of necessity affected by possible sterilisation, the State\u2019s margin of appreciation was narrow. The Court also highlighted the trend in the Contracting States\u2019 legal systems towards abolishing the sterilisation requirement, with eleven States having abolished it between 2009\u00a0and\u00a02016.<\/p>\n
On the basis of these findings the Court proceeded to examine the balance that had been struck between the general interest and the interests of the applicants. It observed that the medical treatment and surgery in question went to individuals\u2019 physical integrity, which was protected by Article\u00a03 of the Convention (relied on by the first applicant) and by Article\u00a08. Accordingly, making recognition of transgender persons\u2019 gender identity conditional on sterilisation surgery or treatment they did not wish to undergo was \u201ctantamount to making the full exercise of their right to respect for private life under Article\u00a08 of the Convention conditional on their relinquishing full exercise of their right to respect for their physical integrity as guaranteed not just by that provision but also by Article\u00a03 of the Convention\u201d.<\/p>\n
Consequently, while the Court accepted that the aims of upholding the principle that a person\u2019s civil status was inalienable and ensuring the reliability and consistency of civil-status records were in the general interest, it considered that in the present case a fair balance had not been struck between the general interest and the interests of the individuals concerned. It therefore held that the respondent State had failed in its positive obligation to secure the applicants\u2019 right to respect for their private life, and found a violation of Article\u00a08 of the Convention. However, with regard to the first applicant\u2019s complaint concerning the requirement to undergo a medical examination to ascertain that the surgery in question had been performed, the Court noted that the applicant had opted to undergo gender reassignment surgery abroad, with the result that the medical examination in question had been aimed solely at establishing the accuracy of his claims. The complaint therefore related to the role of the courts in the context of the taking of evidence, a sphere in which the Court allowed the Contracting Parties a broad margin of appreciation, except where the decisions taken were arbitrary. In the present case the Court found no violation of Article\u00a08 on this account.<\/p>\n
The second condition, which made legal recognition of the gender identity of transgender individuals subject to proof that they \u201cactually suffered from the gender-identity disorder [in question]\u201d, was also contested by the second applicant.<\/p>\n
After noting that a prior psychiatric diagnosis was among the prerequisites for legal recognition of transgender persons\u2019 gender identity in the vast majority of Contracting Parties which allowed such recognition (and which were thus virtually unanimous on the subject), the Court observed that, unlike the sterility requirement, the obligation to obtain a prior psychiatric diagnosis did not directly affect individuals\u2019 physical integrity.<\/p>\n
The Court concluded from this that, although an important aspect of transgender persons\u2019 identity was in issue, the Contracting Parties retained a wide margin of appreciation. Moreover, this condition appeared justified in so far as it was designed to ensure that individuals did not embark in an ill-advised manner on the process of legally changing their identity. In view of the wide margin of appreciation, the Court found no violation of Article\u00a08 on this account.<\/p>\n
While this judgment will not have a direct impact on the applicable legislation in France, which since 12 October 2016 has done away with the requirement concerning the irreversible change in appearance, it is of major significance for those Contracting Parties which continue to make sterilisation a prerequisite for recording a change of gender in civil-status documents. In that regard, the judgment is in line with the cases of Y.Y. v. Turkey, cited above, and Soares de Melo v. Portugal[120]. In these two judgments, the Court criticised sterilisation, whether as a prerequisite for authorisation to undergo gender reassignment surgery or in order to continue to exercise parental rights.<\/p>\n
Private and family life<\/strong><\/p>\nThe Paradiso and Campanelli v. Italy[121] judgment concerned the separation and placement for adoption of a child conceived abroad through surrogacy and brought back to Italy in violation of Italian adoption laws.<\/p>\n
The applicants, Italian nationals and a married couple, entered into a surrogacy arrangement in Russia, following which a child was born in Moscow. A birth certificate was issued in Moscow recording the applicants as the parents, without mention of the surrogacy. The first applicant brought the child back to Italy. The applicants requested the municipality to register the birth certificate. Criminal proceedings, which appeared still to be pending, were opened against the applicants. The Italian courts ordered the child\u2019s removal from the applicants (the order was implemented when the child was about eight months old) and placement for adoption. The authorities also refused to accept the birth certificate and to register the applicants as the parents of the child. DNA tests established that there was no biological link between the child and the husband. In ordering the removal of the child, the courts gave weight to the illegality of the applicants\u2019 conduct under Italian law (concluding a surrogacy agreement contrary to assisted-reproduction laws and bringing the child to Italy in breach of adoption laws) and to the urgency of the situation (the child was considered to have been \u201cabandoned\u201d).<\/p>\n
The Grand Chamber found no violation of Article\u00a08 of the Convention: no \u201cfamily life\u201d existed and there had been no breach of the applicants\u2019 right to respect for their \u201cprivate life\u201d.<\/p>\n
(i) It is worth noting that the scope of the case before the Grand Chamber was quite circumscribed. It did not concern the registration of a foreign birth certificate or the recognition of a legal parent-child relationship in respect of a child born from a gestational surrogacy arrangement, the Chamber having dismissed this complaint on grounds of non-exhaustion. It did not concern separate complaints of an applicant child, the Chamber having dismissed the complaints raised on his behalf by the applicants (contrast Mennesson v. France[122], and Labassee v. France[123]).<\/p>\n
The matter in issue was rather the compliance with Article\u00a08 of the measures taken by the Italian authorities to separate permanently the applicants and the child. Three factors weighed particularly heavily against the applicants throughout the Court\u2019s analysis: the unlawful nature of their acts, the lack of a biological link with the child and, finally, the relatively short duration of the cohabitation due to the rapid reaction of the Italian authorities.<\/p>\n
(ii) The Grand Chamber concluded that the applicants\u2019 relationship with the child did not come within the \u201csphere of family life\u201d because their \u201cgenuine personal ties\u201d did not amount to de facto \u201cfamily life\u201d. In particular, drawing on the Court\u2019s approach in earlier cases (Wagner and J.M.W.L. v. Luxembourg[124]; Moretti and Benedetti v. Italy[125]; and Kopf and Liberda v. Austria[126]), the Grand Chamber assessed the quality of the ties, the role played by the applicants and the duration of cohabitation, the latter criteria being a key factor. However, while it was accepted that the applicants had developed \u201ca parental project\u201d and close emotional bonds with the child, there was no biological tie with the child, the relationship was of short duration and the ties with the child had always been uncertain from a legal perspective (the birth certificate\u2019s compatibility with Russian law was uncertain and the applicants had acted contrary to Italian reproductive and adoption laws).<\/p>\n
(iii) However, concerning as it did the applicants\u2019 decision to become parents (S.H. and Others v. Austria[127]), the case fell within the scope of their right to respect for their \u201cprivate life\u201d. Since certain domestic proceedings concerned the second applicant\u2019s biological link to the child, \u201cthe establishment of the genetic facts\u201d also had an impact on his identity and the applicants\u2019 relationship.<\/p>\n
(iv) The main issue was whether the impugned measures were proportionate to the interference with the applicants\u2019 right to respect for their private life. The Grand Chamber found that the Italian courts had struck a fair balance between the competing public and private interests at stake having regard to the wide margin of appreciation available to them. The focus of the Court\u2019s assessment was on the difficult choice of the Italian authorities between, on the one hand, \u201callowing the applicants to continue their relationship with the child, thereby legalising the unlawful situation created by them as a fait accompli\u201d or, on the other hand, \u201ctaking measures with a view to providing the child with a family in accordance with the legislation on adoption\u201d.<\/p>\n
As to the public interest, the authorities were primarily putting an end to an illegal situation which, moreover, concerned laws on sensitive ethical issues (including laws on descent, adoption, surrogacy, protection of minors and recourse to surrogacy abroad). As to the interests of the child, the domestic courts had concluded that the child would not suffer grave or irreparable harm from the separation. As to the applicants\u2019 interests, the Court did not underestimate the impact of the separation on their private life and, more generally, it could not ignore the \u201cemotional hardship suffered by those whose desire to become parents has not been or cannot be fulfilled\u201d. However, the public interests at stake weighed heavily in the balance and comparatively less weight was attached to the applicants\u2019 interests, the Grand Chamber concluding that \u201c[a]greeing to let the child stay with the applicants, possibly with a view to becoming his adoptive parents, would have been tantamount to legalising the situation created by them in breach of important rules of Italian law\u201d.<\/p>\n
In the K2 v. the United Kingdom[128] decision the Court considered the test for assessing arbitrariness in the context of deprivation of citizenship.<\/p>\n
The applicant, a naturalised British citizen, left the United Kingdom in breach of his bail conditions. While he was out of the country, the Secretary of State for the Home Department ordered that the applicant be deprived of his citizenship on the ground that such measure was conducive to the public good. The applicant was also excluded from the United Kingdom on the ground that he was involved in terrorism-related activities and had links to a number of Islamic extremists. He unsuccessfully challenged both decisions.<\/p>\n
In the Convention proceedings, the applicant contended among other things that the measures applied to him had breached his right to respect for his family and private life. He further complained that there had been inadequate procedural safeguards to ensure effective respect for his Article\u00a08 rights, as there had been very limited disclosure of the national-security case against him and the exclusion order meant that he was unable to participate effectively in the legal proceedings. The Court declared the applicant\u2019s complaints inadmissible as being manifestly ill-founded. The following points are noteworthy.<\/p>\n
Firstly, the Court confirmed that an arbitrary denial (Genovese v. Malta[129]) or revocation (Ramadan v. Malta[130]) of citizenship might, in certain circumstances, raise an issue under Article 8 of the Convention because of its impact on the private life of the individual. In determining whether a revocation of citizenship was in breach of Article 8, two separate issues had to be addressed: whether the revocation was arbitrary; and what the consequences of revocation were for the applicant.<\/p>\n
Secondly, it confirmed in line with the approach taken in the above-mentioned Ramadan judgment (\u00a7\u00a7\u00a086-89) that, in determining arbitrariness, it will have regard to whether the revocation was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and swiftly.<\/p>\n
Thirdly, the Court observed that in assessing the decision to deprive an individual of citizenship, it must apply a standard of \u201carbitrariness\u201d, which is a stricter standard than that of proportionality.<\/p>\n
Applying these principles to the facts of the applicant\u2019s case the Court found that the revocation of citizenship had not been arbitrary. It had particular regard to the applicant\u2019s argument that he was denied procedural safeguards in the domestic proceedings: firstly on account of the limited disclosure of the national-security case against him and, secondly, because his exclusion from the United Kingdom had prevented him from participating effectively in his appeal against the decision to deprive him of citizenship. Reviewing the fairness of the domestic proceedings, the Court observed among other matters that they had been conducted in a manner compatible with Article\u00a08 requirements and that it did not consider itself in a position to call into question the domestic courts\u2019 findings that there was no clear, objective evidence that the applicant was unable to instruct lawyers while outside the jurisdiction.<\/p>\n
As regards the consequences of the revocation, the Court noted that the applicant had obtained Sudanese nationality and had not thereby been rendered stateless. Moreover, the applicant had not substantiated his claim that his wife and child were resident in the United Kingdom. In any event, they were free to join him in Sudan and even to relocate there.<\/p>\n
The decision is significant in view of the fact that the Court had to address for the first time an issue of revocation in the context of terrorism and national-security considerations.<\/p>\n
Private life and correspondence<\/strong><\/p>\nThe B\u0103rbulescu v. Romania[131] judgment concerned an employee\u2019s right to respect for private life and correspondence in the workplace and the limits of the employer\u2019s right to monitor.<\/p>\n
The applicant\u2019s employer prohibited personal activities in the workplace including the use by employees of company resources for personal reasons. The employer monitored the applicant\u2019s electronic messaging, accessing mainly a Yahoo messenger account which the applicant had been instructed to create to communicate with customers but also his personal Yahoo messenger account. The volume and content of his messages were recorded and stored: certain messages were personal (some intimate). He was dismissed for using company resources for personal reasons. The transcript of his communications was used in evidence before the domestic courts.<\/p>\n
The applicant complained under Article\u00a08 of a breach of his right to respect for his private life and correspondence. Both the French Government and the European Trade Union Confederation were given leave to intervene as third parties. The Grand Chamber found a violation of the applicant\u2019s right to respect for his private life and correspondence.<\/p>\n
The case gives rise to a number of interesting issues concerning the respective rights and obligations of employees and employers as regards personal electronic communications in the workplace.<\/p>\n
(i) The question whether Article\u00a08 applied \u2013 essentially whether the applicant could be said to have had a reasonable expectation of privacy\u00a0\u2013 was not a straightforward one. While a messaging service is a form of communication in principle covered by the notions of private (social) life and correspondence, the applicant had been instructed by his employer to refrain from personal activities in the workplace including using company resources for personal reasons. Other factors were also considered to be relevant: the applicant had not been informed in advance of the nature and extent of his employer\u2019s monitoring activities; and while the applicant created the customer messenger account himself and had put a password on it, it was done on the employer\u2019s instructions and for professional activities. Interestingly, the Grand Chamber decided to leave open the question whether the applicant had a reasonable expectation of privacy because, in any event, \u201can employer\u2019s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary\u201d. Article\u00a08 therefore applied. In sum, whether or not an individual had a reasonable expectation of privacy, communications in the workplace are covered by the concepts of private life and correspondence.<\/p>\n
(ii) The core question being whether the State had fulfilled its positive obligation to ensure respect for the applicant\u2019s Article\u00a08 rights in the workplace, the Grand Chamber set down in some detail the principles by which the nature and scope of that obligation could be determined. Three aspects are worth noting.<\/p>\n
\u2013 While in certain contexts that positive obligation translated into a requirement to establish a protective legislative framework, the Grand Chamber did not require this in the present context. It considered that the Contracting States had to be granted \u201ca wide margin of appreciation\u201d as regards the legal framework to regulate the conditions in which an employer might regulate electronic or other communications of a non-professional nature by its employees in the workplace. In this respect, the Grand Chamber was guided by the specific features of the labour context (contractual, partly self-regulatory, etc.) and the lack of any European consensus on the regulatory issue (few States having legislated on the exercise of employees\u2019 right to respect for their private life and correspondence in the workplace). That said, the States\u2019 discretion was not unlimited so that the positive obligation on the authorities was to ensure that the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, was to be \u201caccompanied by adequate and sufficient safeguards against abuse\u201d, proportionality and procedural guarantees against arbitrariness being considered essential.<\/p>\n
\u2013 The Grand Chamber then set down a detailed list of factors by which compliance with this positive obligation should be assessed, drawing on various international and European standards[132] and on the Court\u2019s comparative analysis: (i) whether the employee has been notified clearly and in advance of the possibility that the employer might monitor correspondence and other communications, and of the implementation of such measures; (ii) the extent of the monitoring by the employer and the degree of intrusion into the employee\u2019s privacy (traffic and content); (iii) whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content; (iv) whether there is a possibility of establishing a monitoring system based on less intrusive methods and measures; (v) the seriousness of the consequences of the monitoring for the employee subjected to it, as well as the use made of the results of monitoring; and (vi) whether the employee has been provided with adequate safeguards including, in particular, prior notification of the possibility of accessing the content of communications.<\/p>\n
On the facts of the case, the Grand Chamber found that, while the domestic courts had \u201ccorrectly\u201d identified and applied the legal principles on monitoring of Internet use and electronic communications in the workplace set out in Directive 95\/46\/EC, there had been a violation of Article\u00a08 because those courts had not also applied most of the above-listed criteria. Notwithstanding therefore the State\u2019s margin of appreciation, the domestic authorities had failed to strike a fair balance between the interests at stake, so that there had therefore been a violation of Article\u00a08 of the Convention.<\/p>\n
\u2013 The Grand Chamber also observed that an employee whose communications had been monitored should have access to a \u201cremedy before a judicial body with jurisdiction to determine, at least in substance, how the criteria outlined above were observed and whether the impugned measures were lawful\u201d.<\/p>\n
Freedom of thought, conscience and religion (Article\u00a09)<\/h2>\n
Manifest one\u2019s religion or belief<\/strong><\/p>\nThe judgment in Osmano\u011flu and Kocaba\u015f v. Switzerland[133] concerned a refusal by the applicant parents on religious grounds to allow their daughters to attend compulsory mixed swimming lessons organised by the school.<\/p>\n
The applicants were devout Muslims. They were fined on account of their refusal to comply with a requirement that their children take part in swimming classes organised by the primary school. The applicants\u2019 opposition was based on the fact that their children were girls and would have to share the swimming pool with boys, which was not in accordance with their religious beliefs. Pursuant to local-education regulations, attendance at swimming classes was a compulsory part of the physical-education component of the primary-school curriculum, which obligation applied until children reached the age of puberty. The applicants contested the refusal of the local authority to grant their children a dispensation from the obligation as well as the decision to fine them for their failure to ensure their children\u2019s presence at the classes. Their case was ultimately rejected by the Federal Tribunal, which reasoned that the local-education policy, as reflected in the impugned regulations, was designed to secure the integration of children, regardless of their or their parents\u2019 religious or cultural background, and that the authorities had made provision for particular religious or cultural sensitivities by installing separate changing and showering rooms for boys and girls and by allowing girls to wear burkinis in the swimming pool. It also observed that the mixed-swimming requirement only applied to children who had not reached the age of puberty.<\/p>\n
In the Convention proceedings the applicants renewed their complaint that their right to freedom of religion guaranteed by Article\u00a09 of the Convention had been infringed. The Court ruled against the applicants.<\/p>\n
The Court\u2019s reasoning is noteworthy as regards its findings, firstly, that there had been an interference with the applicants\u2019 Article\u00a09 rights and, secondly, the manner in which it applied the margin of appreciation doctrine to the facts of the case, having regard to the principles which it has previously established in this area as well as in the context of the right to education.<\/p>\n
As to the question of interference, the Court reiterated its previous case-law in concluding that, even if the Koran prescribed that the bodies of female children should only be covered as from the age of puberty, the applicants\u2019 belief that their children should be prepared in advance to adhere to this tenet of the applicants\u2019 faith was an expression of their religious belief (see, in this connection, Eweida and Others v. the United Kingdom[134]). Article 9 was applicable and the refusal to dispense the applicants from the requirement to ensure their children\u2019s attendance at the school\u2019s swimming lessons amounted to an interference with the applicants\u2019 right to manifest their religion. It is important to note that Switzerland has not ratified Protocol No. 1 to the Convention, which in its Article 2 guarantees the right to education. That Article is usually regarded as lex specialis when it comes to disputes in the education sector involving the religious beliefs of parents.<\/p>\n
In the instant case, the Court drew on the case-law principles which have informed its approach under Article 2 of Protocol No. 1 (see in particular, Folger\u00f8 and Others v. Norway[135], and Lautsi and Others v. Italy[136]) in order to determine, among other things, the scope of the authorities\u2019 margin of appreciation \u2013 wide in the Court\u2019s view \u2013 and whether a fair balance had been struck between the applicants\u2019 Article 9 rights and the aims which the impugned restriction sought to achieve (for which see the view of the Federal Tribunal, set out above).<\/p>\n
As to the question of the proportionality of the refusal, the Court, in line with the Federal Tribunal\u2019s views, noted the importance of schools for the promotion of social integration. It could accept that compulsory education was an essential part of a child\u2019s development and that a dispensation from attending particular courses should only be envisaged in very exceptional cases and on a non-discriminatory basis. For the Court, the importance attached to ensuring that the applicants\u2019 children received the whole of the educational programme on offer at their school so as to further the local authority\u2019s vision of social integration outweighed the applicants\u2019 wish to have the children exempted from attending swimming lessons. It is of interest that the Court stressed that the aim of the lessons was not solely to provide children with physical exercise. The classes also enabled them to learn to swim together and to share an activity collectively. In finding the restriction proportionate in the applicants\u2019 case, the Court also had regard among other things to the manner in which the school had sought to make arrangements at the time of the swimming classes in order to accommodate the applicants\u2019 beliefs (see above), the proportionate nature of the fine imposed on them following a series of warnings and the availability of an effective procedure to allow the applicants to assert their right to freedom of religion.<\/p>\n
The Adyan and Others v. Armenia[137] judgment concerned the applicants\u2019 objection on grounds of conscience and religion to performing a service offered as an alternative to military service.<\/p>\n
The applicants, who were Jehovah\u2019s Witnesses, objected to performing military service as well as the alternative to military service which had been introduced in Armenia in 2004. They were charged and later convicted under the Criminal Code of \u201cevasion of fixed-term regular conscription to military or alternative service\u201d. In the domestic proceedings, they argued unsuccessfully that the alternative service was not of a genuinely civilian nature since it was supervised by the military authorities, was punitive in nature and that their conscience did not allow them to work directly or indirectly for the military.<\/p>\n
In the Convention proceedings, the applicants pleaded that their conviction had violated their right to conscientious objection guaranteed by Article\u00a09 of the Convention. The Court agreed with that submission.<\/p>\n
In its landmark judgment in Bayatyan v. Armenia[138], the Grand Chamber addressed the scope of the protection afforded by Article 9 to conscientious objectors. It ruled that<\/p>\n
\u201copposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person\u2019s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article\u00a09\u201d.<\/p>\n
The applicant in the Bayatyan case, also a Jehovah\u2019s Witness, did not raise any objection to performing an alternative civilian service given that there was no such alternative in Armenia at the material time. His only complaint related to his conviction for refusing to serve in the army. In the instant case, the applicants did object to performing the alternative service and the Court had to address for the first time the applicability of Article\u00a09 to such objection. In view of the principles set out in Bayatyan and the reasons underpinning the objection, the Court had no difficulty in finding that Article\u00a09 was applicable. The applicants\u2019 refusal to perform the alternative service was a manifestation of their religious beliefs and their conviction for evasion of the draft amounted to an interference with their freedom to manifest their religion.<\/p>\n
As to the necessity of the interference, the Court observed that the fact that Armenia had introduced an alternative to military service in 2004 was not of itself sufficient to conclude that the authorities had discharged their obligation under Article\u00a09 to make allowances for the exigencies of an individual\u2019s conscience and beliefs when implementing a system of compulsory military service (see, in this connection, Bayatyan, \u00a7\u00a7\u00a0124-25). Importantly, it noted that<\/p>\n
\u201cthe right to conscientious objection guaranteed by Article\u00a09 of the Convention would be illusory if a State were allowed to organise and implement its system of alternative service in a way that would fail to offer \u2013 whether in law or in practice\u00a0\u2013 an alternative to military service of a genuinely civilian nature and one which was not deterrent or punitive in character\u201d (paragraph\u00a067).<\/p>\n
The question for the Court to determine was whether the alternative labour service available to the applicants at the material time complied with those requirements.<\/p>\n
The Court observed that, although the work was carried out in civilian institutions (for example, orphanages and hospitals) and was of a civilian nature, the military authorities were actively involved in the supervision of the work and of those performing it. It concluded that the alternative service was not hierarchically and institutionally sufficiently separated from the military system at the material time. It was significant for the Court, among other things, that the alternative-labour servicemen were required to wear a uniform and to stay at their place of service. Turning to the alleged deterrent or punitive nature of the work, it noted that the duration of the alternative labour service was much longer than the length of military service (forty-two months instead of twenty-four). In the Court\u2019s opinion, such a significant difference in the duration of service must have had a deterrent effect and can be said to have contained a punitive element.<\/p>\n
The Court concluded that the authorities had failed to make appropriate allowances for the exigencies of the applicants\u2019 conscience and beliefs and to guarantee a system of alternative service that struck a fair balance between the interests of society as a whole and those of the applicants, as required by Article\u00a09. It is noteworthy that the law on alternative service was amended in 2013 in order to place it under purely civilian administration.<\/p>\n
The judgment in Hamidovi\u0107 v. Bosnia and Herzogovina[139] concerned the punishment of a witness (the applicant) on account of his refusal to comply with a court order to remove a religious symbol when giving evidence.<\/p>\n
The applicant was a member of a local group advocating the Wahhabi\/Salafi version of Islam which opposed the concept of a secular State and recognised only God\u2019s law and court. The applicant was called to give evidence in a criminal trial involving members of the same group charged with offences of terrorism. He was fined for contempt of court for having refused to remove his skullcap when asked to testify. He had been warned of the consequences, but nevertheless insisted that the wearing of the skullcap was an integral part of his faith, in fact a duty. The trial court acted on the basis of an inherent power to regulate the conduct of proceedings in the interests of fairness for all parties. His appeal against the fine was based on his right to manifest his religion, as guaranteed by Article\u00a09. The appeal was rejected, ultimately by the Constitutional Court, on the ground that the principle of secularism as enshrined in the Constitution of the respondent State took precedence over the right (which it acknowledged to be a duty) asserted by the applicant.<\/p>\n
In the Convention proceedings, the applicant asked the Court to find that the sanction imposed on him had breached his rights under Article\u00a09 of the Convention. The Court found for the applicant. The judgment is noteworthy for the following reasons.<\/p>\n
In the first place, this was the first occasion on which the Court had to address the wearing of a religious symbol by a witness, a private individual, in a court setting and not at the place of work \u2013 a completely different context.<\/p>\n
Secondly, and accepting that the sanction imposed on the applicant was \u201cprescribed by law\u201d, having regard to the fact that the applicant had been warned of the consequences of his action, the Court reaffirmed that secularism is a belief protected by Article 9 of the Convention (see Lautsi and Others v. Italy[140]) and the upholding of secular and democratic values can be linked to the legitimate aim of the \u201cprotection of the rights and freedoms of others\u201d within the meaning of Article 9 \u00a7 2 (see Leyla \u015eahin v. Turkey[141], and Ahmet Arslan and Others v. Turkey[142]).<\/p>\n
Thirdly, the Court reiterated that States should, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one\u2019s religion or beliefs is \u201cnecessary\u201d. Its task was to determine whether the measures taken at national level were justified in principle and proportionate. On the facts of the applicant\u2019s case, the Court found that the respondent State had exceeded the wide margin afforded to it. It placed emphasis on the following main considerations: unlike a public official whose duty of discretion, neutrality and impartiality may entail a duty not to wear religious symbols and clothing when exercising his or her authority, the applicant was a private individual (see, for example, Dahlab v. Switzerland[143]; Kurtulmu\u015f v. Turkey[144]; and Ebrahimian v. France[145]); the applicant was required to testify on pain of sanction and there was no indication that he was unwilling to give evidence; there was no reason to doubt that the applicant\u2019s act was inspired by his sincere religious belief that he must wear a skullcap at all times, \u201cwithout any hidden agenda to make a mockery of the trial, incite others to reject secular and democratic values or cause a disturbance\u201d; unlike the members of his religious group on trial, the applicant appeared before the court as summoned and stood up when requested, thereby clearly submitting to the laws and courts of the country.<\/p>\n
Interestingly, the Court observed that there may be cases in which it would be justified to order a witness to remove a religious symbol. However, no such justification could be found in the applicant\u2019s case.<\/p>\n
Freedom of expression (Article 10)[146]<\/h2>\n
Freedom of expression<\/strong><\/p>\nThe judgment in Med\u017elis Islamske Zajednice Br\u010dko and Others v. Bosnia and Herzegovina[147] concerned the protection and responsibilities of non-governmental organisations (NGOs) when assuming a social-watchdog function (in this case, making allegations of misconduct by civil servants).<\/p>\n
The applicant NGOs wrote a letter to three persons in authority in the District of Br\u010dko voicing concerns about M.S., at the time a public servant at the district\u2019s multi-ethnic public radio station and a candidate for the post of director of the radio station. The letter criticised the district authorities for failing to apply the principle of proportionate representation of ethnic communities in the public service of the district and challenged the alleged proposed appointment of M.S. on the basis of alleged actions by M.S. that were disrespectful of Muslims and ethnic Bosniacs. The letter was later published: it was not established by whom. M.S. successfully brought defamation proceedings. The domestic courts\u2019 finding concerned only the applicant NGOs\u2019 private correspondence with the district authorities, not the later publication of the letter. Having failed to retract the contents of the letter, the applicant NGOs paid a fine of approximately 1,500 euros.<\/p>\n
The applicant NGOs complained to the Court mainly under Article\u00a010 of the Convention. The Grand Chamber found that there had been no violation of that provision, as the disputed interference was supported by relevant and sufficient reasons.<\/p>\n
There are a number of noteworthy aspects to this judgment<\/p>\n
Firstly, the Court balanced the expression rights of the applicant NGOs against M.S.\u2019s right to private life guaranteed by Article 8, as opposed to the protection of the \u201creputation and rights of others\u201d in Article 10 \u00a7 2 of the Convention. In so doing the Grand Chamber reiterated that, for Article 8 to apply, the attack had to be sufficiently serious and done in a manner causing prejudice to the personal enjoyment of the right to respect for private life (Axel Springer AG v. Germany[148]). Finding that the accusations against M.S. were not only capable of tarnishing her reputation but also of causing prejudice both to her professional and social environment, the accusations attained the required level of severity considered to harm M.S.\u2019s rights under Article 8. It is interesting as M.S. was a civil servant, the context was her candidature for another civil-service post and, there being no evidence that the applicant NGOs had published the letter, their liability was assessed only in relation to their private correspondence with the three authorities.<\/p>\n
Secondly, it is worth noting how the Grand Chamber characterised the applicant NGOs\u2019 actions. It found that they were not whistle-blowers within the meaning of that concept in this Court\u2019s case-law (Guja v. Moldova[149]; Heinisch v. Germany[150]; and Aurelian Oprea v. Romania[151]). This was because they were not in an employment relationship with the radio station and did not therefore owe a duty of \u201cloyalty, reserve and discretion\u201d towards the radio station.<\/p>\n
Rather, the situation was similar to cases concerning the right to report alleged irregularities in the conduct of State officials (Zakharov v. Russia[152]). However, the Zakharov case-law \u2013 which saw the Court \u201cprepared to assess an applicant\u2019s good faith and efforts to ascertain the truth according to a more subjective and lenient approach than in other types of case\u201d \u2013 had to be adapted to the distinctive features of the present case.<\/p>\n
The main distinguishing feature was that the present applicants were NGOs playing a watchdog role \u201cof similar importance to that of the press\u201d (Animal Defenders International v. the United Kingdom[153]; the Grand Chamber also referred to the Fundamental Principles on the Status of Non-governmental Organisations in Europe, Council of Europe, 2002). According to the Court\u2019s constant case-law, by reason of the \u201cduties and responsibilities\u201d inherent in the exercise of freedom of expression, the safeguard afforded to journalists reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. The Grand Chamber had recently found (Magyar Helsinki Bizotts\u00e1g v. Hungary[154]) that the same obligations apply to an NGO assuming a social-watchdog function. The obligations in the present case were therefore stricter than in Zakharov given the identity (NGOs) and role (social watchdog) of the applicants. The Court concluded its review of the applicable principles by confirming that it would also take into account the criteria that apply to the dissemination of defamatory statements by the media in the exercise of their public-watchdog role (Von Hannover v. Germany (no. 2)[155]; Axel Springer AG, cited above, \u00a7\u00a7 89-95; and Couderc and Hachette Filipacchi Associ\u00e9s v. France[156]).<\/p>\n
Thirdly, applying these principles and finding no violation of Article\u00a010, the Grand Chamber demonstrated how the requirement to act in \u201cgood faith … to provide accurate and reliable information\u201d translated into obligations on the applicant NGOs reporting on matters of public interest. A number of factors were of particular importance in that regard.<\/p>\n
\u2013 The manner in which the applicant NGOs drafted the letter was reviewed in some detail and criticised by the Grand Chamber. For example, the term \u201c[a]ccording to our information\u201d failed to clearly indicate that part of the information came from sources other than the applicant NGOs and, since they had implied that they had direct access to that information, they had to take responsibility for it; and, while the letter requested the authorities to \u201creact appropriately\u201d, the Court considered that insufficient to conclude that the applicant NGOs had requested the authorities to investigate or verify their allegations.<\/p>\n
\u2013 The most important factor for the Court was the authenticity of the information disclosed. As noted above, the applicant NGOs were required, as the press would be, to verify the veracity of the allegations they had made against M.S. On the one hand, the Court added that this duty was greater since the applicant NGOs acted as representatives of particular segments of society and, further, that rendering an accurate account was important for the development and maintenance of mutual trust and of the NGOs\u2019 image as competent and responsible participants in public life. On the other, the Court accepted that a certain degree of hyperbole and exaggeration was to be tolerated and even expected from NGOs. However, the Grand Chamber found that the applicant NGOs\u2019 allegations were clearly inaccurate and unverified so that the extent of the obligation on NGOs to provide accurate and reliable information was not tested by the facts of the present case. For example, they had inaccurately reported one account by radio-station employees, and thus \u201cloaded\u201d that account against M.S.; another allegation amounted to an unverified rumour; and an additional and serious accusation (that M.S. had made an anti-Muslim statement in a newspaper) had been made frivolously without checking if M.S. was indeed the author of that statement and, when they later discovered that M.S. was not the author, they had failed to inform the recipients of the letter of this.<\/p>\n
The Bayev and Others v. Russia[157] judgment concerned a legislative prohibition on the promotion of homosexuality among minors.<\/p>\n
Each of the applicants was fined in administrative proceedings for having staged a protest against laws banning the promotion of homosexuality among minors. Such laws were enacted first at the regional level and subsequently at the federal level. In the Convention proceedings the applicants relied on Articles\u00a010 and\u00a014 of the Convention. They maintained that the legislation in issue prevented them from campaigning in favour of the rights of sexual minorities and that the vagueness of the legislation made its application unforeseeable since it required them to be aware of the presence of minors in their daily activities in order to conceal their sexual orientation. The Court found a breach of both provisions of the Convention.<\/p>\n
As to Article 10 of the Convention, the Court readily accepted that there had been an interference with the applicants\u2019 right to freedom of expression \u2013 they had been fined on account of their protest actions. It is noteworthy that the Court intimated that, irrespective of the fact that the applicants had been sanctioned for their individual acts of defiance, the very existence of the ban might of itself have constituted an interference with their Article 10 rights, having regard to its possible \u201cchilling effect\u201d on the applicants\u2019 situation as LGBT activists (see, in this connection, Smith and Grady v. the United Kingdom[158]). It is also of note that the Court decided to assess the justification relied on by the Government for the impugned legislation as general measures. It noted in line with precedent that the more convincing the general justifications for the general measures are, the less importance the Court will attach to its impact in the particular case (see Animal Defenders International v. the United Kingdom[159]).<\/p>\n
As regards the applicants\u2019 criticism of the quality of the laws under consideration, the Court acknowledged that the impugned legislation was vague and unforeseeable in its application. Interestingly, it did not consider it appropriate to limit its analysis under Article\u00a010 to the quality of the law requirement. It observed that this matter was secondary to the question of the necessity of such laws as general measures. For that reason, it took the broad scope of the laws into account in its assessment of the justifications put forward by the Government.<\/p>\n
The Government defended the need for the legislative ban with reference to three imperatives drawn from the second paragraph of Article\u00a010: (i) the protection of morals and family values and the fact that the majority of the Russian population disapproved of homosexuality and resented any display of same-sex relations; (ii) the protection of health on the ground that same-sex relationships posed a risk to public health and the attainment of demographic targets; (iii)\u00a0the protection of the rights of others, critically minors, and the need to shield them from information which could convey a positive image of homosexuality with the risk of inducing or forcing them into adopting a different sexual orientation.<\/p>\n
(i) The Court\u2019s reasoning in response to the Government\u2019s first argument is of particular significance, based as it is on a clear line of case-law confirming the following principles: there is a clear European consensus on the recognition of individuals\u2019 rights to openly identify themselves as belonging to a sexual minority and to promote their own rights and freedoms (see, in this connection, Alekseyev v. Russia[160]); there is a growing tendency to include relationships between same-sex couples within the concept of \u201cfamily life\u201d (see Schalk and Kopf v. Austria[161]) and an acknowledgement of the need for their legal recognition and protection (see Oliari and Others v. Italy[162]); policies and decisions which embody a predisposed bias on the part of a heterosexual majority against a homosexual minority, even if they reflect traditions or general assumptions in a particular country, cannot be justified in Convention terms (see, for example, Smith and Grady, cited above, \u00a7 97).<\/p>\n
With these considerations in mind, the Court rejected the Government\u2019s claim that regulating public debate on LGBT issues could be justified in order to protect public morality. It is noteworthy that the Court found that the legislation in question represented a pre-disposed bias against a homosexual minority, which could not be justified with reference to the popular support which the ban commanded (this conclusion also underpinned its finding of a breach of Article\u00a014 of the Convention). It reiterated in this connection that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.<\/p>\n
(ii) As to the justification advanced on health grounds and demographic growth, the Court observed among other things that the Government had not demonstrated that the messages conveyed by the applicants at the time of their protests advocated reckless behaviour or any other unhealthy personal choices, and that suppression of information about same-sex relationships was not a method by which a negative demographic trend might be reversed.<\/p>\n
(iii) Turning to the argument based on the need to protect minors, the main reason for the adoption of the laws in issue, the Court observed with reference to its conclusions in the earlier case of Alekseyev (cited above, \u00a7\u00a086) that the Government had not provided any evidentiary basis for the belief that minors were at risk of being enticed into changing their sexual orientation by being exposed to discussion on matters relating to the status of sexual minorities; nor was it possible to defend the ban with reference to the need to guard against the risk of exploitation and corruption of minors. For the Court, protection against such risks should not be limited to same-sex relationships. Interestingly, in replying to the Government\u2019s argument that the applicants\u2019 actions had intruded in the field of educational policies and parental choices on matters of sex education, the Court noted that the applicants\u2019 messages were not inaccurate, sexually explicit or aggressive, nor had the applicants made any attempt to advocate any sexual behaviour and<\/p>\n
\u201c[t]o the extent that the minors who witnessed the applicants\u2019 campaign were exposed to the ideas of diversity, equality and tolerance, the adoption of these views could only be conducive to social cohesion\u201d (paragraph\u00a082).<\/p>\n
The Court\u2019s overall conclusion (paragraph\u00a083) is particularly striking:<\/p>\n
\u201cGiven the vagueness of the terminology used and the potentially unlimited scope of their application, these provisions are open to abuse in individual cases, as evidenced in the three applications at hand. Above all, by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society.\u201d<\/p>\n
In D\u00f6ner and Others v. Turkey[163] the Court considered the balance to be struck between freedom of expression and the fight against terrorism.<\/p>\n
In the exercise of their constitutional rights, and at a time when this issue was a matter of public discussion, the applicants filed petitions with the competent national authorities requesting that provision be made for their children to be educated in the Kurdish language in the public elementary schools they attended. The applicants\u2019 houses were subsequently searched on suspicion that their action had been instigated by an illegal armed organisation. Although no incriminating materials were found, the applicants were arrested and detained \u2013 all of them for four days and some were remanded in custody for almost one month. All the applicants were charged and tried before a State Security Court with aiding and abetting an illegal armed organisation. They were eventually acquitted.<\/p>\n
The Court examined the applicants\u2019 situation from the standpoint of an interference with their right to freedom of expression. It found a breach.<\/p>\n
The Court\u2019s judgment is of interest as regards the following issues.<\/p>\n
Firstly, the Court ruled that, regardless of whether the applicants had been ultimately acquitted of the charges brought against them, the various measures to which they had been subjected for having exercised their rights on a matter of public interest amounted to an interference with their Article\u00a010 rights. The Court reasoned that the applicants could still be considered to be \u201cvictims\u201d of an alleged breach of their rights under that Article\u00a0since the State Security Court when acquitting them had neither acknowledged nor afforded redress for the measures to which they had been subjected after lodging their petition to the national authorities.<\/p>\n
Secondly, and as regards the question whether the interference was \u201cnecessary in a democratic society\u201d, the Court drew on its established case-law on the reconciliation of free speech and the fight against terrorism. It observed (paragraph\u00a0102):<\/p>\n
\u201cWhile the Court does not underestimate the difficulties to which the fight against terrorism gives rise, it considers that that fact alone does not absolve the national authorities of their obligations under Article\u00a010 of the Convention. Accordingly, although freedom of expression may be legitimately curtailed in the interests of national security, territorial integrity and public safety, those restrictions must still be justified by relevant and sufficient reasons and respond to a pressing social need in a proportionate manner …\u201d<\/p>\n
Against that background, the Court noted, among other things, as follows.<\/p>\n
(i) The applicants\u2019 petition concerned a matter of public interest, having regard to the public debate at the material time on the social and cultural rights of Turkish citizens of Kurdish ethnicity, including their right to education in the Kurdish language.<\/p>\n
(ii) The authorities did not display the necessary restraint when dealing with the applicants\u2019 petitions, since they had used the legal arsenal at their disposal \u201cin an almost repressive manner against them\u201d.<\/p>\n
(iii) The applicants had used their constitutional right to file a petition regarding the education of their children in Kurdish and, significantly, after the applicants\u2019 arrest and while they were still on trial the relevant law had been amended to provide for such, at least initially on a private basis.<\/p>\n
It is noteworthy that the Court also observed when concluding that the applicants\u2019 Article\u00a010 rights had been violated that the fact that the applicants\u2019 peaceful request may have coincided with the aims or instructions of an illegal armed organisation did not remove that request from the scope of protection of Article\u00a010.<\/p>\n
Freedom of the press<\/p>\n
The judgment in Selmani and Others v. the former Yugoslav Republic of Macedonia[164] concerned the forcible removal of the applicant journalists from the press gallery of Parliament and the absence of an oral hearing in their legal challenge to the removal.<\/p>\n
The applicants, who were journalists, were covering a parliamentary debate on the adoption of the State budget when a commotion provoked by a group of members of parliament broke out on the floor of Parliament, thereby triggering the intervention of security staff. The applicants refused to comply with an order to vacate the gallery believing that the public had the right to be informed of the disturbance. They were forcibly removed since the security staff felt that they were at risk. The applicants complained to the Constitutional Court of the circumstances of their removal. The Constitutional Court, without holding an oral hearing, rejected the applicants\u2019 Article\u00a010 based arguments. It found that \u201cthe Parliament security service considered that, in order to protect the integrity and lives of the journalists in the gallery, the latter should be moved to a safer place where they would not be in danger\u201d.<\/p>\n
The Court upheld the applicants\u2019 Article\u00a010 complaint on the basis that the above-mentioned reasons given by the Constitutional Court were not sufficient to justify the applicants\u2019 removal from the press gallery. The following points are noteworthy in this connection.<\/p>\n
Firstly, the Court reiterated that any attempt to remove journalists from the scene of demonstrations must be subject to strict scrutiny (see Pentik\u00e4inen v. Finland[165]), and stressed that this principle applies even more so when journalists exercise their right to impart information to the public concerning the behaviour of elected representatives in Parliament and the manner in which the authorities handle disorder that occurs during parliamentary sessions, these being matters of public interest. At the same time, the Court had recently stressed in its Kar\u00e1csony and Others v. Hungary[166] judgment that Parliaments are entitled to react when their members engage in disorderly conduct disrupting the normal functioning of the legislature. Secondly, on the basis of its analysis of all the relevant facts, the Court found that the applicants had not posed any threat to order in Parliament and, contrary to the risk assessment made by the security staff, there was no indication that the disturbances created by members of parliament had endangered the applicants\u2019 own personal safety in the gallery. Thirdly, as to the argument that the applicants could have followed the live broadcast of the debate, for example in premises adjacent to the press gallery, the Court observed in paragraph 84 of the judgment that \u201cthe applicants\u2019 removal entailed immediate adverse effects that instantaneously prevented them from obtaining first-hand and direct knowledge based on their personal experience of the events unfolding in the chamber … Those were important elements in the exercise of the applicants\u2019 journalistic functions, which the public should not have been deprived of in the circumstances of the present case.\u201d<\/p>\n
The Becker v. Norway[167] judgment concerned the scope of a journalist\u2019s right not to testify about his or her contact with a source where the source has come forward.<\/p>\n
The applicant, a journalist, published an article based on (incorrect) information supplied to her by a third party in which she drew attention to the gloomy financial prospects of the Norwegian Oil Company. The share price of the company fell following publication. The third party was arrested and charged with various economic crimes including market manipulation. The third party admitted that he was the source of the applicant\u2019s article, having sent the applicant a letter misrepresenting the financial health of the company. The applicant was ordered to testify as a prosecution witness about her contact with the third party. She refused relying on her right to protect the confidentiality of her sources. The applicant was fined. She unsuccessfully challenged the order, including before the Norwegian Supreme Court (which was divided on the matter, having considered the relevant case-law of this Court).<\/p>\n
In the Convention proceedings the applicant complained that there had been an unjustified interference with her right under Article\u00a010 of the Convention not to be compelled to disclose her sources.<\/p>\n
The Court found for the applicant. The judgment is noteworthy since it marks a development in the Court\u2019s case-law on the protection of journalistic sources. The Court has consistently emphasised that such protection is a fundamental aspect of press freedom and an order requiring a journalist to reveal his or her sources of information demands \u201cthe most careful scrutiny\u201d and can only be justified by \u201can overriding requirement in the public interest\u201d (see, for example, Goodwin v. the United Kingdom[168]). It is important to reiterate that the Court has already held that the conduct of the source, for example the fact that the source acted in bad faith for a harmful purpose when supplying the information to a journalist, does not automatically deprive the journalist of the protection afforded by Article 10. The source\u2019s conduct is a matter to be weighed in the balance when assessing the proportionality of the disclosure order (see, for example, Financial Times Ltd and Others v. the United Kingdom[169]). Of equal relevance is the fact that the Court has previously declared in the context of a search conducted by the authorities that the fact that the source\u2019s identity had been known to them did not remove a journalist\u2019s protection under Article 10 (see, in this connection, Nagla v. Latvia[170]).<\/p>\n
What is interesting in the applicant\u2019s case is that the source had \u201ccome forward\u201d and freely volunteered that he was the applicant\u2019s source for the article that she had published. In other words, there was no source to protect. Does this development remove the journalist from the protection of Article\u00a010, or is it one consideration, among others, to be examined as part of the proportionality test?<\/p>\n
Significantly, and with reference to the case-law cited above, the Court found that the source\u2019s decision to \u201ccome forward\u201d had to be examined as an aspect of the proportionality of the interference alleged by the applicant, and in particular whether the domestic courts had given relevant and sufficient reasons capable of satisfying the \u201cnecessity\u201d test or, in case-law terms, the existence of a \u201cpressing social need\u201d for the interference with the applicant journalist\u2019s Article 10 right. Importantly, the Court also observed (paragraph 76, with reference to Nordisk Film & TV A\/S v. Denmark[171], and Stichting Ostade Blade v. the Netherlands[172]):<\/p>\n
\u201c… the circumstances with respect to both [the third party\u2019s] motivation for presenting himself as a \u2018source\u2019 to the applicant and his coming forward during the investigation suggest that the degree of protection under Article\u00a010 of the Convention to be applied in the present case cannot reach the same level as that afforded to journalists who have been assisted by persons of unknown identity to inform the public about matters of public interest or matters concerning others.\u201d<\/p>\n
Against that background, the Court found on the facts that the \u201cnecessity\u201d test had not been satisfied. It gave prominence to the fact that the applicant\u2019s refusal to comply with the order did not at any point in time hinder either the criminal investigation or the proceedings against the third party (see, in this connection, Voskuil v. the Netherlands[173]) and at no stage did the third party argue that the order should be imposed on the applicant in order to safeguard his rights.<\/p>\n
Having regard to the importance of the protection of journalistic sources for press freedom, the Court found the reasons adduced in favour of compelling the applicant to testify about her contact with the third party, although relevant, were insufficient. Even bearing in mind the appropriate level of protection applicable to the particular circumstances of the case, the Court was not convinced that the impugned order was justified by an \u201coverriding requirement in the public interest\u201d and, hence, necessary in a democratic society.<\/p>\n
Freedom to receive and impart information<\/strong><\/p>\nThe judgment in Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy v. Finland[174] concerned restrictions on the dissemination on a massive scale of personal taxation data that under domestic law were accessible to the public.<\/p>\n
The applicants, media organisations, were involved at the material time in the collection, processing and dissemination of personal taxation data (details of named individual\u2019s taxable earned and unearned income as well as their taxable net assets) on a massive scale both in print form and via an SMS service. Data relating to about one-third of Finnish taxpayers were so published. Such information is accessible to the public in the respondent State subject to compliance with certain conditions. The Data Protection Ombudsman brought proceedings to limit the scope of the applicants\u2019 activities. Ultimately, the Supreme Administrative Court, having requested a preliminary ruling from the Court of Justice of the European Union on whether the applicants\u2019 activities were carried out for journalistic purposes thereby enabling them to benefit from the derogation contained in Article 9 of the Data Protection Directive[175] (which Directive had been transposed into domestic law through the enactment of the Personal Data Act), ordered the applicants to scale back considerably their operations in view of data-protection considerations and to refrain from use of the SMS service.<\/p>\n
In the Convention proceedings, the applicants argued that these prohibitions on their activities amounted to an unlawful restriction on their right to impart information, having regard among other things to the fact that the collection of personal taxation data was not illegal as such and that the information collected and published was in the public domain.<\/p>\n
The Grand Chamber found in the circumstances that there had been an interference with the applicants\u2019 Article 10 right, but there had been no breach of that provision given that the domestic courts had struck a fair balance between the competing rights in issue, namely press freedom and privacy, rights which, it noted, are deserving of equal respect, the margin of appreciation being the same regardless of the right invoked in a particular situation. In balancing these rights, it had regard, as appropriate, to the criteria established in its previous judgments, including Von Hannover v. Germany (no. 2)[176] and Couderc and Hachette Filipacchi Associ\u00e9s v. France[177].<\/p>\n
However, to get to the balancing stage the Grand Chamber had to address the applicants\u2019 assertion that their activities did not impact on individual privacy rights since the taxation data were already in the public domain. On this point it is noteworthy that the Grand Chamber, on the basis of a careful review of its Article 8 case-law on privacy and data protection as well as the relevance of the public sphere in which personal information may be obtained, concluded that the private life of the taxpayers concerned was engaged. It noted in this connection that, notwithstanding the fact that their data could be accessed by the public pursuant to Finnish law under certain conditions, such data clearly concerned their private life. Significantly, it noted in this connection that Article 8 provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data that, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights are engaged. This would appear to be the first occasion on which the Court has linked the Article 8 privacy right to the right of the data-subject to have a say in the use made of the personal information that he or she is obliged to provide to the authorities and that, pursuant to openness legislation, can be accessed by the public albeit subject to certain conditions (as in Finland and a limited number of other Contracting States). It is of relevance in this connection that the Grand Chamber, when discussing the legitimacy of the aim pursued by the limits placed on the applicants\u2019 activities, stressed that the impugned interference with the applicants\u2019 Article 10 right pursued the legitimate aim of protecting \u201cthe reputation or rights of others\u201d within the meaning of paragraph 2 of that provision and that the protection of privacy was at the heart of the data-protection legislation that was applied in their case to their detriment. It is of interest that it had regard in this connection to the aims of the Council of Europe\u2019s Data Protection Convention[178], noting that its principles are reflected in the corresponding EU instruments on data protection. It is of further interest that, when it comes to the protection of personal data that are in the public domain, the Court is able to adjudicate effectively on the scope of protection within the ambit of Article 8 of the Convention, even if the right to data protection, unlike in Article 8 of the Charter of Fundamental Rights of the European Union, is not as such explicitly articulated as a fundamental aspect of private life. The instant case confirms that it does.<\/p>\n
The applicants argued that the interference was not prescribed by law since they could not have foreseen that their specific publishing activities would be caught by the data-protection law, having regard in this connection to the journalistic-purposes derogation (see above). The Grand Chamber noted among other things that<\/p>\n
\u201cthe applicant companies were media professionals and, as such, they should have been aware of the possibility that the mass collection of data and its wholesale dissemination \u2013 pertaining to about one-third of Finnish taxpayers or 1.2 million people, a number ten to twenty times greater than that covered by any other media organisation at the time \u2013 might not be considered as processing \u2018solely\u2019 for journalistic purposes under the relevant provisions of Finnish and EU law\u201d (paragraph\u00a0151).<\/p>\n
Turning to the Article\u00a010\/Article\u00a08 balancing exercise (see above), two issues may be highlighted.<\/p>\n
Firstly, the Grand Chamber readily accepted that permitting public access to official documents, including taxation data, is designed to secure the availability of information for the purpose of enabling a debate on matters of public interest. Such access, albeit subject to clear statutory rules and restrictions, has a constitutional basis in Finnish law and has been widely guaranteed for many decades. However, like the Supreme Administrative Court, the Grand Chamber was not persuaded that publication of taxation data in the manner and to the extent done by the applicant companies contributed to such a debate, or indeed that its principal purpose was to do so. In the Grand Chamber\u2019s view<\/p>\n
\u201cthe existence of a public interest in providing access to, and allowing the collection of, large amounts of taxation data did not necessarily or automatically mean that there was also a public interest in disseminating en masse such raw data in unaltered form without any analytical input\u201d (paragraph\u00a0175).<\/p>\n
Secondly, the Grand Chamber observed that Finland is one of the very few Council of Europe member States with such a high level of public access to personal taxation data. Finland had sought in the relevant national legislation to reconcile access, data-protection and press-freedom considerations, including by making access subject to compliance with certain conditions and by allowing journalists to benefit from a derogation from data-protection rules when processing personal data for journalistic purposes. Interestingly, it observed that\u00a0it<\/p>\n
\u201cmay also take into consideration, when assessing the overall balance struck, the fact that that State, somewhat exceptionally, as a matter of constitutional choice and, in the interests of transparency, has chosen to make taxation data accessible to the public\u201d (paragraph\u00a0195).<\/p>\n
Prohibition of discrimination (Article\u00a014)<\/h2>\n
Article\u00a014 taken in conjunction with Article\u00a03<\/strong><\/p>\nThe question examined in \u0160korjanec v. Croatia[179] was the scope of the duty to investigate a racially motivated act of violence.<\/p>\n
The applicant\u2019s partner was of Roma origin. In 2013 the couple were assaulted by two individuals who were later convicted of the attack on the applicant\u2019s partner. It was established that there was also proof of an element of a hate-related crime in view of the anti-Roma insults uttered by the two individuals immediately preceding and during the attack. The applicant was treated as a witness in the criminal case and not as a victim alongside her partner. In the meantime, the applicant herself tried to bring criminal proceedings against her attackers. The competent State Attorney\u2019s Office, while not disputing that the applicant had been injured in the attack, concluded that there was no proof that she had been the victim of a racially motivated assault as she was not of Roma origin. The applicant\u2019s partner, and not the applicant, had been singled out on account of his Roma origin and for that reason her criminal complaint was dismissed. In the Convention proceedings the Court decided to examine the applicant\u2019s complaint regarding the authorities\u2019 failure to discharge their positive obligations in relation to a racially motivated act of violence against her under Article\u00a014 of the Convention read in conjunction with Article\u00a03. The Court found a breach of these provisions.<\/p>\n
The following points are worthy of attention.<\/p>\n
Firstly, the judgment contains a comprehensive survey of the principles that the Court has developed regarding the scope of a State\u2019s duty to have adequate legal mechanisms in place to protect individuals from racially motivated violence and to investigate violent incidents triggered by suspicions of racism.<\/p>\n
Secondly, the Court, in what would appear to be a development of its earlier case-law in this area, reasoned (paragraph\u00a056) that the obligation under Article\u00a014 taken in conjunction with Article\u00a03 to take all reasonable measures to investigate possible racist overtones to an act of violence<\/p>\n
\u201cconcerns not only acts of violence based on a victim\u2019s actual or perceived personal status or characteristics but also acts of violence based on a victim\u2019s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic\u201d.<\/p>\n
The Court elaborated further on this principle at paragraph\u00a066, stating:<\/p>\n
\u201cIndeed, some hate-crime victims are chosen not because they hold a particular characteristic but because of their association with another person who actually or presumably possesses the relevant characteristic. This connection may take the form of the victim\u2019s membership of or association with a particular group, or the victim\u2019s actual or perceived affiliation with a member of a particular group through, for instance, a personal relationship, friendship or marriage …\u201d<\/p>\n
On the facts of the case, the Court found that the prosecuting authorities had concentrated their investigation and analysis only on the hate-crime element related to the violent attack on the applicant\u2019s partner. It noted among other things that the prosecuting authorities\u2019 insistence on the fact that the applicant herself was not of Roma origin and their failure to identify whether she was perceived by the attackers as being of Roma origin herself, as well as their failure to take into account and establish the link between the racist motive for the attack and the applicant\u2019s association with her partner, had resulted in a deficient assessment of the circumstances of the case.<\/p>\n
Article\u00a014 taken in conjunction with Article\u00a05<\/strong><\/p>\nThe Khamtokhu and Aksenchik v. Russia[180] judgment concerned a difference in treatment in sentencing of, on the one hand, adult men and, on the other, female, juvenile and senior offenders.<\/p>\n
The applicants were adult men serving life sentences for, inter alia, attempted murder and murder. They complained under Article\u00a014 in conjunction with Article\u00a05 that they had been treated less favourably than female, juvenile and senior offenders found guilty of the same crimes because, by virtue of Article\u00a057 of the Russian Criminal Code, the latter could not be given a life sentence.<\/p>\n
The Grand Chamber found that there had been no violation of Article\u00a014 of the Convention in conjunction with Article\u00a05. Two aspects of this judgment are worth noting.<\/p>\n
(i) The first concerns the applicability of Article\u00a014 taken in conjunction with Article\u00a05, the Court again finding that matters that might not normally fall within the scope of Article\u00a05 can fall within its ambit for the purposes of the applicability of Article\u00a014 of the Convention.<\/p>\n
In particular, matters of appropriate sentencing fall, in principle, outside the scope of the Convention. However, a sentencing measure differentiating between offenders by age and gender had already been found by the former Commission to give rise to an issue under Article 14 in conjunction with Article 5 (Nelson v. the United Kingdom[181], and A.P. v. the United Kingdom[182]). The Court had also viewed measures relating to execution of a sentence and impacting on the length of a sentence as falling within the scope of Article 5, and matters concerning eligibility for parole as giving rise to an issue under Article 14 in conjunction with Article 5 (Gerger v. Turkey[183], and Clift v. the United Kingdom[184]). Moreover, Article 14 extends to additional rights, falling within the scope of the Convention, that a State volunteers to provide (Stec and Others v. the United Kingdom[185]). Accordingly, national legislation exempting certain categories of offender from life imprisonment fell within the scope of Article 5 for the purposes of the applicability of Article 14. The applicants having been treated differently on the basis of \u201csex\u201d and \u201cage\u201d, Article 14 in conjunction with Article 5 was applicable.<\/p>\n
(ii) The second aspect concerns the justification for the difference in treatment of the applicant adult men, which the Grand Chamber found did not amount to discrimination in breach of Article\u00a014.<\/p>\n
The Grand Chamber established that the applicants were in an analogous situation to other offenders convicted of the same or comparable offences and, importantly, that the purpose of the impugned sentencing policy was to ensure, for reasons of justice and humanity, that account was taken of the age and physiological characteristics of certain categories of offender.<\/p>\n
As to whether this difference in treatment was justifiable, the Grand Chamber\u2019s analysis drew on the Court\u2019s case-law regarding the compatibility of life sentences with Article 3 of the Convention. While life sentences were not, as such, incompatible with Article 3, the case-law had established certain minimum requirements in that regard: a life sentence had to be reducible, so there had to be a prospect of release and a possibility of review, both of which had to exist at the time of the imposition of the sentence (Vinter and Others v. the United Kingdom[186], and Murray v. the Netherlands[187]). Accordingly the fact that a State took measures aimed at complying with such minimum requirements would weigh heavily in favour of the State in the Article 14 assessment.<\/p>\n
Turning then to the respective differences in treatment, the Grand Chamber considered the exception in favour of juvenile offenders to be justified given that it was in line with the clear European consensus and with other international standards. Nor did the Grand Chamber have much difficulty with the exclusion of senior offenders, as this was in line with the Court\u2019s case-law, since reducibility clearly carried even greater weight for elderly offenders: setting the age after which a life sentence could not be imposed was consistent with this. The justification for the exclusion of adult female offenders appeared to be more complex for the Grand Chamber. While it would not assess the various instruments and data submitted by the parties regarding the needs of women in prisons, it accepted that there was a \u201csufficient basis for the Court to conclude that there was a public interest\u201d underlying the exemption of female offenders from life imprisonment.<\/p>\n
The margin of appreciation was central to the Court\u2019s findings. There were two conflicting interests: on the one hand, particularly serious reasons were required to justify a difference in treatment on grounds of sex and, on the other, it was not the role of the Court to decide on an appropriate term of imprisonment. In the end, the Grand Chamber accepted that a wide margin of appreciation had to be left to the authorities. In the first place, they had to enjoy broad discretion when asked to make rulings on sensitive matters such as penal policy. In addition, the case concerned evolving rights, the law appearing to be in a \u201ctransitional stage\u201d: while there was no discernible international trend for or against life sentences, such sentences had been limited in Europe given the Convention requirement of the reducibility of life sentences. Finally, juveniles and the Vinter and Others requirement for reducibility apart, there was little other common ground on life sentences between the domestic legal systems, and so no established consensus. In such circumstances, it was difficult to criticise the State for establishing, in a way which reflected the evolution of society in that sphere, the exemption of certain groups of offenders, which represented social progress in penological matters.<\/p>\n
Finally, it would appear that the evolving nature of the subject matter also meant that the option of exempting all offenders from life sentences was not a solution that could be imposed on the respondent State: given the current position in the Convention case-law, that option was not required \u201cunder the Convention as currently interpreted by the Court\u201d.<\/p>\n
Article\u00a014 taken in conjunction with Article\u00a08<\/strong><\/p>\nThe judgment in Carvalho Pinto de Sousa Morais v. Portugal[188] concerned a domestic court\u2019s decision based on gender and age-based stereotypes.<\/p>\n
The applicant underwent surgery which resulted in, among other things, mobility problems and difficulties in having sexual relations. She was 50 years old at the time. She brought civil proceedings against the hospital, and was awarded compensation in respect of pecuniary and non-pecuniary damage. On appeal, the Supreme Administrative Court reduced the amount awarded on the following grounds.<\/p>\n
\u201c(1) [I]t has not been established that the plaintiff had lost her capacity to take care of domestic tasks, (2) professional activity outside the home is one thing while domestic work is another, and (3)\u00a0considering the age of her children, she [the plaintiff] probably only needed to take care of her husband, which leads us to the conclusion that she did not need to hire a full-time maid …<\/p>\n
… it should not be forgotten that at the time of the operation the plaintiff was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age.\u201d<\/p>\n
In reducing the award the Supreme Administrative Court also had regard to the fact that the surgical procedure had only aggravated the applicant\u2019s already difficult medical situation.<\/p>\n
In the Convention proceedings, the applicant complained that the decision of the Supreme Administrative Court was discriminatory\u00a0\u2013 on grounds of her gender and age \u2013 and breached Article\u00a014 of the Convention read in conjunction with Article\u00a08.<\/p>\n
The Court found for the applicant. The judgment is noteworthy in that this is the first occasion on which the Court has found fault with the language used by a domestic court \u2013 in the instant case a superior court\u00a0\u2013 when dealing with the age and gender of a litigant.<\/p>\n
In accordance with its established case-law, the Court had to establish as a preliminary issue that Article\u00a014 was engaged on the facts. It found that that Article\u00a0could be relied on by the applicant given that the facts in issue fell within the scope of the applicant\u2019s Article\u00a08 right to respect for her private life, a broad concept which does not lend itself to exhaustive definition. The applicant had brought civil proceedings to be compensated for the damage caused to her physical and psychological integrity as a result of medical malpractice. This was sufficient to allow the Court to assess whether the language used by the Supreme Administrative Court meant that the applicant had been treated differently from persons in an analogous or relevantly similar situation and whether the Government had shown the existence of reasonable and objective justification for such difference.<\/p>\n
In order to determine whether the applicant had been the victim of discrimination the Court had careful regard to the reasoning of the Supreme Administrative Court when reducing the award. It placed emphasis on the following considerations: firstly, very weighty reasons had to be advanced in order to justify a difference of treatment based on gender (see, for example, Konstantin Markin v. Russia[189]); secondly, a difference of treatment based on age also required to be justified, the Court adding that \u201cit has not, to date, suggested that discrimination on grounds of age should be equated with other \u2018suspect\u2019 grounds of discrimination\u201d (British Gurkha Welfare Society and Others v. the United Kingdom[190]).<\/p>\n
It found on the facts that the wording used by the domestic court could not be regarded as \u201can unfortunate turn of phrase\u201d and that the applicant\u2019s age and sex \u201cappear to have been decisive factors in the final decision\u201d. It is noteworthy that the Court found support for its view that the applicant had been treated differently on account of her age and sex in a number of reports that drew attention to the existence of a problem of gender-based stereotyping in the respondent State including in its judicial institutions. In addition, it had regard to the manner in which the Supreme Court of Justice had dealt with two previous sets of medical malpractice proceedings brought by two male patients, respectively 55 and 59 years old. The Court found it significant that the domestic court considered that the fact that the men could no longer have normal sexual relations had affected their self-esteem and resulted in a \u201ctremendous shock\u201d and \u201cstrong mental shock\u201d. Their age was not considered to be relevant. Contrasting the applicant\u2019s case, the Court observed (paragraph\u00a052) that the domestic court worked on the<\/p>\n
\u201cassumption that sexuality is not as important for a 50-year-old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self-fulfilment of women as people.\u201d<\/p>\n
The Alexandru Enache v. Romania[191] judgment concerned a difference in treatment between female and male offenders who have a child less than a year old.<\/p>\n
The applicant was sentenced to a seven-year term of imprisonment. He had a child who was less than a year old at the time. A female offender in his situation would have been allowed to request that the starting date for serving the sentence be deferred until the child had reached its first birthday.<\/p>\n
The applicant complained in the Convention proceedings that this difference in treatment amounted to unlawful discrimination on grounds of sex in the enjoyment of his right to family life.<\/p>\n
The Court found that the refusal to allow the applicant to defer the starting date had had a direct impact on the manner in which he organised his family life. Reiterating that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention, the applicant in the instant case continued to enjoy the right to respect for family life, guaranteed by Article 8 (Dickson v. the United Kingdom[192], and Khoroshenko v. Russia[193]). The facts of the case fell within the scope of Article 8, with the result that the applicant could rely on Article 14.<\/p>\n
The Court then inquired as to whether the applicant was in an analogous situation to that of a female and, in the affirmative, whether he had been treated differently because of his sex and without any reasonable and objective justification linked to the pursuit of a legitimate aim. In previous cases having their background in the context of employment the Court has found male applicants to be in an analogous situation to that of women when it comes to matters such as entitlement to parental leave and related allowances. In Konstantin Markin v. Russia[194] the Grand Chamber concluded:<\/p>\n
\u201cWhilst being aware of the differences which may exist between mother and father in their relationship with the child, …, as far as the role of taking care of the child during the period corresponding to parental leave is concerned, men and women are \u2018similarly placed\u2019.\u201d<\/p>\n
The instant case concerned the entirely different context of the respondent State\u2019s penal policy. However, the Court found that the same considerations applied. In response to the Government\u2019s argument that the deferral of the start of a female offender\u2019s sentence was intended to promote the best interests of the child by enabling it to receive the necessary care and attention during the first year of its life, the Court observed that the child\u2019s father was equally capable of assuming that responsibility.<\/p>\n
Turning to the justification for the difference in treatment and the question of proportionality, the Court had regard to two considerations: a female offender had no automatic entitlement to a deferral of sentence; and both male and female offenders had the possibility to request a deferral of their sentence on proof of special hardship that imprisonment would entail, including for their families.<\/p>\n
More importantly, weight had to be given to the fact that the penal provisions contested as discriminatory by the applicant were intended to take account of the particular bond between a mother and her child during the first year of its life, a period that, according to the Government, was a natural progression from pregnancy and childbirth. The Court agreed that this consideration, based as it was on the special nature of maternity, was sufficient to justify the difference in treatment. It found support for this conclusion in Article\u00a04 \u00a7\u00a02 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, which reads:<\/p>\n
\u201cAdoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.\u201d<\/p>\n
In the Court\u2019s view, the difference in treatment criticised in the instant case involving a mother subject to deprivation of liberty should also be viewed against this background (see the use made by the Court of the UN Convention in Khamtokhu and Aksenchik v. Russia[195]). Having regard to the wide margin of appreciation that the respondent State enjoys in this context, the Court was satisfied that there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued, and that there had been no breach of Article 14 taken in conjunction with Article 8.<\/p>\n
The judgment in Ratzenb\u00f6ck and Seydl v. Austria[196] concerned the inability of different-sex couples to enter into a registered partnership, such partnerships being reserved for same-sex couples.<\/p>\n
The applicants, a different-sex couple in a stable, long-term relationship, complained under Article\u00a014 read in conjunction with Article\u00a08 that they were prevented from having access to domestic-law arrangements whereby persons of the same sex could have their relationship recognised and given legal effect in the form of a registered partnership. The applicants unsuccessfully argued before the domestic courts that, although the possibility was available to them, marriage was not their preferred option. In their view, a registered partnership was in many respects a more advantageous alternative. According to the applicants, the fact that domestic law (the Registered Partnership Act) reserved the registered-partnership institution exclusively to same-sex couples meant that they were discriminated against on grounds of their sex and sexual orientation. The applicants renewed their arguments in the Convention proceedings. The Court found that there had been no breach of the provisions relied on.<\/p>\n
This was the first occasion on which the Court had had to examine the question of differences in treatment based on sex and sexual orientation relating to the exclusion of a different-sex couple from a legal institution for recognition of a relationship reserved to same-sex couples. Prior to this judgment, the Court\u2019s relevant case-law in such matters had originated in applications lodged by same-sex couples whose complaints concerned the lack of access to marriage and lack of alternative means of legal recognition (see Schalk and Kopf v. Austria[197]; Vallianatos and Others v. Greece[198]; and Oliari and Others v. Italy[199]).<\/p>\n
In the first place, the Court had no difficulty in confirming that the applicants, although not married, could rely on the \u201cfamily life\u201d limb of Article 8, since they had, through their relationship, created de facto family ties (see Elsholz v. Germany[200]). Article 14 therefore applied.<\/p>\n
In accordance with its usual practice the Court examined whether, for the purpose of Article 14, the applicants were in a comparable situation to same-sex couples who have access to registered partnerships. It observed in that connection that it had already found that different-sex couples are in principle in a relevantly similar or comparable position to same-sex couples as regards their general need for legal recognition and protection of their relationship (see, for example, Vallianatos and Others, cited above, \u00a7 78, and the other judgments cited above). However, on closer analysis of the background to the adoption of the Registered Partnership Act and its relationship to the institution of marriage, it concluded that the applicants were not in a relevantly similar or comparable position to same-sex couples. Its analysis reflects the approach to the comparator issue most recently set out in F\u00e1bi\u00e1n v. Hungary[201], namely:<\/p>\n
\u201cIn examining whether persons subject to different treatment are in a relevantly similar situation, the Court takes into account the elements that characterise their circumstances in the particular context. The elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject matter and purpose of the measure which makes the distinction in question.\u201d<\/p>\n
The Court noted among other things:<\/p>\n
(i) The registered partnership was introduced as an alternative to marriage in order to make available to same-sex couples an arrangement which was substantially similar to marriage in terms of the legal recognition of their relationship.<\/p>\n
(ii) The institutions of marriage and the registered partnership were essentially complementary in Austrian law and there were no substantial differences between them. Although the applicants maintained that a registered partnership is a \u201cmore modern and lighter institution\u201d than marriage, they did not claim to have been specifically affected by any difference in law between those institutions.<\/p>\n
(iii) The applicants, as a different-sex couple, had access to the institution of marriage. This satisfied \u2013 contrary to same-sex couples before the enactment of the Registered Partnership Act \u2013 their principal need for legal recognition.<\/p>\n
Having regard to that conclusion, the Court did not need to inquire into the justification for the difference in treatment.<\/p>\n
Article\u00a014 of the Convention taken in conjunction with Article\u00a01 of Protocol No.\u00a01<\/strong><\/p>\nOne of the issues in the F\u00e1bi\u00e1n v. Hungary[202] judgment was whether public and private-sector employees were, for the purposes of Article 14 of the Convention, in a \u201crelevantly similar situation\u201d.<\/p>\n
The case concerned the suspension, following the introduction of legislative changes, of the disbursement of the applicant\u2019s State pension during the period he was also employed in the public sector. The legislative prohibition on accumulating a pension and salary did not apply to those employed in the private sector or to certain groups of public-sector employees.<\/p>\n
The Grand Chamber found that there had been no violation as regards the complaint of discrimination between pensioners employed in the public sector and the private sector, as the applicant had not discharged the burden on him to demonstrate that those two groups were in an analogous or relevantly similar situation. In so finding, this judgment can be seen to confirm and supplement the decision in Panfile v. Romania[203], the Grand Chamber explaining why and how the Court distinguished between public and private-sector employees.<\/p>\n
The elements that characterised the circumstances of the groups in the particular context were to be taken into account and, further, were to be examined in the light of the subject matter and purpose of the impugned measure. Three preliminary factors were to be retained in that regard. The State enjoys \u201cwide latitude in organising State functions and public services\u201d. In addition, there were substantial legal and factual differences between public and private-sector employment for institutional and functional reasons, not least in fields involving the exercise of sovereign State power and the provision of essential public services. Moreover, it could not therefore be presumed that the terms and conditions of employment (including financial), or the eligibility for social benefits linked to employment, would be similar in the public and private sectors, nor could it be presumed that these categories of employee would be in relevantly similar situations in those respects. In this latter respect, it was noted that the salaries and employment-linked social benefits of State employees were, unlike those of private-sector employees, paid by the State.<\/p>\n
These factors were reflected in the Court\u2019s case-law distinguishing between public and private-sector employees. In Valkov and Others v. Bulgaria[204] the Court observed that it was not for an international court to rule on the question of whether the authorities had made a valid distinction between employment in these two groups, such decisions being policy judgments in principle for the national authorities. In various cases the Court had also recognised the particular status of civil servants given the special features of their role in the exercise of public powers and functions including, for example, their duty of loyalty in an Article 10 context (Heinisch v. Germany[205]) or their exercise of the discretionary powers intrinsic to State sovereignty in the context of their right of access to a court (Pellegrin v. France[206], and Vilho Eskelinen and Others v. Finland[207]). Finally, in Panfile, cited above, the Court had emphasised the different sources of the salaries of public and private employees. The present case required a fourth factor to be taken into account: the role of the State when acting in its capacity as employer, which was not comparable to private-sector employers either from the perspective of the instructional framework or in terms of the financial and economic fundamentals of their activities.<\/p>\n
These principles were applied to the present case. It was true that the old-age pension for private and public-sector employees came from the same public source to which each group contributed equally. However, a key point of distinction was that the applicant\u2019s salary and old-age pension came from the same State source and the ban on accumulating both was a measure aimed at reducing public expenditure, the Grand Chamber remarking that in Panfile it was the distinction between the source of their salaries that led to the finding that the relevant groups were not in an analogous situation. Noting certain additional points of distinction (under domestic law, employment in the civil service and employment in the private sector were treated as distinct categories; the applicant\u2019s public-sector profession was difficult to compare with any private-sector profession; and it was for the State as his employer to set down the terms of his employment and, as the manager of the pension fund, the conditions for disbursement of pensions), the Grand Chamber concluded that the applicant had not demonstrated that he was in a relevantly similar situation to pensioners employed in the private sector.<\/p>\n
The decision in P. Plaisier B.V. and Others v. the Netherlands[208] concerned certain budgetary austerity measures and their compatibility with Article 1 of Protocol No. 1 and Article 14 of the Convention.<\/p>\n
The applicant companies contested the compatibility with Article\u00a01 of Protocol No.\u00a01 and Article\u00a014 of the Convention of a levy imposed on employers, like themselves, who had paid their employees salaries of more than 150,000 euros (EUR) pre-tax during the previous tax year (2012). This levy, or high-wages tax surcharge, was a feature of the Budget Agreement approved by Parliament against the background of the sovereign debt crisis in Europe at the relevant time, as well as the need to ensure compliance with the State\u2019s EU obligations on budget deficit. The levy was to apply only for 2013 (it was renewed once for 2014). The applicant companies contested what they saw as the discriminatory and disproportionate nature of the levy since it did not apply to employees who earned more than EUR 150,000 pre-tax, persons of individual wealth or the self-employed. They also took issue with the absence of any individual assessment of means and the retroactive nature of the measure, which had made it impossible for them to plan for its application in practice. Finally, they argued that the actual contribution of the levy to tax revenue had been minimal.<\/p>\n
The Court declared the applications inadmissible as a whole as being manifestly ill-founded (Article\u00a035 \u00a7\u00a7\u00a03 (a) and\u00a04 of the Convention). The decision is interesting for the following reasons.<\/p>\n
In the first place, this is the latest in a series of cases in which the Court has been asked to address the proportionality of measures adopted by a number of Contracting States in response to the sovereign debt crisis which reached its peak in 2012.<\/p>\n
Secondly, the decision in this case transcends mere national interests, given that the financial crisis has affected many EU member States.<\/p>\n
Thirdly, the decision contains a comprehensive description of the cases which the Court has so far dealt with including the nature of the impugned measures.<\/p>\n
Fourthly, the Court confirmed its starting-point for assessing whether a State has exceeded its margin of appreciation when implementing austerity measures, including by means of stringent taxation policies as in the instant case. It observed (paragraph\u00a082):<\/p>\n
\u201cThere can be no doubt that the Netherlands was entitled in principle to take far-reaching measures to bring its economy back into line with its international obligations, as indeed were the other member States whose measures \u2013 some of which continue to affect the financial position of entire segments of their societies to the present day \u2013 have been the object of applications to the Court. This entitlement is however subject to the proviso that no \u2018individual and excessive burden\u2019 be imposed on any person.\u201d<\/p>\n
On the facts, the Court found that the individual burden imposed on the applicant companies was not excessive. In particular, the Court had regard to austerity measures introduced elsewhere \u2013 such as the cutting of public-sector wages (Koufaki and Adedy v. Greece[209]) and the \u201chaircut\u201d imposed on holders of Greek government bonds (Mamatas and Others v. Greece[210]) \u2013 which were far more dramatic in their effects on individuals than the tax surcharge in issue in the present case. Acting within its wide margin of appreciation, the Netherlands had adopted a measure that did not upset the balance that must be struck between the demands of the public interest and the protection of the applicant companies\u2019 rights.<\/p>\n
Protection of property (Article\u00a01 of Protocol No.\u00a01)<\/h2>\n
Enjoyment of possessions<\/strong><\/p>\nA further issue arising in the F\u00e1bi\u00e1n[211] judgment, cited above, was the proportionality of the suspension of a State pension. The applicant, who was already in receipt of an old-age pension, took up employment as a civil servant. Following the introduction of new legislation prohibiting the accumulation of a pension and a salary, payment of the applicant\u2019s pension was suspended in respect of the period for which he had worked in the public sector.<\/p>\n
The Grand Chamber found that there had been no violation of Article\u00a01 of Protocol No.\u00a01.<\/p>\n
In examining whether the national authorities had acted within their margin of appreciation in the instant case, the Grand Chamber stated that it would have particular regard to certain factors that the case-law \u201crelating to the reduction, suspension or discontinuance of social-security pensions\u201d indicated were of relevance: the extent of the loss of benefits; whether there was an element of choice; and the extent of the loss of means of subsistence. Since the present applicant\u2019s pension was only suspended during the period he was re-employed in the public service, since he was able to choose between continuing State employment and receiving his pension and since he was by no means left devoid of subsistence, the Court concluded that a fair balance had been struck between the demands of the general interest and the applicant\u2019s rights.<\/p>\n
It is useful to compare the above three criteria to those identified in B\u00e9l\u00e1n\u00e9 Nagy v. Hungary[212], by which the Grand Chamber assessed, also in the context of Article 1 of Protocol No. 1, the proportionality of changes to the qualification criteria for a disability benefit which meant the withdrawal of that benefit even though the applicant\u2019s health had not changed. The B\u00e9l\u00e1n\u00e9 Nagy assessment criteria included: the level of reduction in benefits; the discriminatory nature of any loss of entitlement; the use of transitional measures; any arbitrariness of the new condition; the applicant\u2019s good faith; and, importantly, any impairment of the essence of the pension rights. It would appear therefore that the criteria for assessing the proportionality of a change in social benefits will depend on the particular context of the case.<\/p>\n
Right to free elections (Article\u00a03 of Protocol No.\u00a01)<\/h2>\n
The Davydov and Others v. Russia[213] judgment concerned the extent of the Court\u2019s scrutiny in respect of alleged irregularities during the counting and tabulation of votes.<\/p>\n
The applicants, eleven in all, alleged that the organisation and conduct of elections for two legislative bodies (the regional Legislative Assembly of St Petersburg and the Duma) in several polling stations in St Petersburg in December 2011 had breached Article\u00a03 of Protocol No.\u00a01. They had taken part in the elections in different capacities: all of them were registered voters; some of them were candidates; others were members of electoral commissions or observers. In the Convention proceedings they contended (as in their various unsuccessful challenges before various national authorities) that there had been serious irregularities in the procedure in which votes had been recounted, which resulted in more votes being assigned following the recounts to the ruling party and its candidates to the detriment of the opposition parties and their candidates. They alleged that the domestic authorities had failed to ensure an effective review of their complaints.<\/p>\n
The Court found that there had been a breach of Article\u00a03 of Protocol No.\u00a01 on account of the failure to provide the applicants with an effective review of their arguable claim that there had been serious irregularities in the processing and tabulation of votes. It focused on what it considered to be the thrust of their grievance, namely that for many constituencies there existed a difference between the results obtained by the political parties, as recorded initially after counting by the Precinct Electoral Commissions, and the official results published by the City Electoral Commission.<\/p>\n
The judgment is noteworthy for the following reasons.<\/p>\n
Firstly, the Court observed that the guarantees of Article\u00a03 of Protocol No.\u00a01, as interpreted in its case-law, also impose as an aspect of the right to free elections positive obligations on the State to regulate carefully the procedures by which the results of voting are ascertained, processed and recorded. It highlighted in this connection the emphasis placed by the Venice Commission in its Code of Good Practice in Electoral Matters on the importance of the post-voting stage in the election process and its advocacy of clear procedural guarantees surrounding matters such as the counting and recording of election results.<\/p>\n
Secondly, the Court addressed the extent of its scrutiny of this technical post-voting stage of the electoral process, having regard to the scope of its review in respect of restrictions on the right to vote and the right to stand for elections. Interestingly, the Court observed that a less stringent scrutiny would apply to this stage. A mere mistake or irregularity would not, per se, signify unfairness of the elections, if the general principles of equality, transparency, impartiality and independence of the electoral administration are complied with. For the Court, the concept of free elections would be put at risk only if there was evidence of procedural breaches that would be capable of thwarting the free expression of the opinion of the people, for instance through gross distortion of the voters\u2019 intent, and where such complaints receive no effective examination at the domestic level.<\/p>\n
Thirdly, the Court inquired into whether the applicants had made out a claim of serious irregularities. It found that they had presented to the domestic authorities an arguable claim that the fairness of the elections both to the St Petersburg Legislative Assembly and the Duma in the precincts concerned had been seriously compromised by the procedure in which the votes had been recounted. The Court stressed its awareness of the limits of its fact-finding role in this type of case, and focused on those matters which were not disputed by the parties. Thus, it noted, among other things, the scale of the recounting; the unclear reasons for ordering a recount; the systematic absence of the opposition parties\u2019 nominees during the recounting; and the ruling party\u2019s overwhelming gain from the recounts.<\/p>\n
Fourthly, the Court noted that the applicants had tried to avail themselves of all the domestic remedies available to them under domestic law (complaints to electoral commissions, criminal remedies and judicial review proceedings). On the facts it found that none of the avenues employed by the applicants afforded them a review that would have provided sufficient guarantees against arbitrariness. It stressed in this connection (paragraph\u00a0335 of the judgment) that<\/p>\n
\u201cwhere serious irregularities in the process of counting and tabulation of votes can lead to gross distortion of the voters\u2019 intent, such complaints should be effectively examined by the domestic authorities. Failure to ensure effective examination of such complaints would constitute violations of individuals\u2019 right to free elections guaranteed under Article\u00a03 of Protocol No.\u00a01, in its active and passive aspects.\u201d<\/p>\n
In its decision in Moohan and Gillon v. the United Kingdom[214] the Court considered whether a secession referendum fell within the ambit of Article 3 of Protocol No. 1.<\/p>\n
The applicants were serving prison sentences in Scotland. They\u00a0were ineligible to vote in the independence referendum organised in Scotland on 18\u00a0September 2014 since the relevant domestic legislation stipulated that a convicted person was legally incapable of voting in the referendum if he was, on the date of the referendum, detained in a penal institution in pursuance of the sentence imposed on him. The applicants\u2019 challenge to the prohibition was ultimately dismissed by a majority of the Supreme Court of the United Kingdom after a detailed consideration of the Court\u2019s case-law on the applicability of Article\u00a03 of Protocol No.\u00a01 to the right to vote in a referendum. The majority carefully reasoned that the case-law and the plain language of Article\u00a03 unequivocally excluded referenda from the purview of that provision, notwithstanding the fact that the independence referendum in issue was a secession referendum of considerable political importance. The minority expressed the view that the Court\u2019s case-law did in fact draw a distinction between referenda that merely had an effect on the powers and operation of a legislature and those that, like the independence referendum under consideration, necessarily determined the type of legislature that citizens of a country would have. The minority referred among other things to the need to interpret the Convention as a \u201cliving instrument\u201d in light of its object and purpose including the guarantee of \u201can effective political democracy\u201d as proclaimed in its Preamble.<\/p>\n
In the Convention proceedings the applicants complained under Article\u00a010 of the Convention and under Article\u00a03 of Protocol No.\u00a01 that they were subject to a \u201cblanket ban\u201d on voting in the independence referendum.<\/p>\n
The Court ruled against the applicants, finding their complaint to be incompatible with the provisions of the Convention and its Protocols. It noted that the established case-law strongly indicated that both the Court and the former Commission considered that Article 3 of Protocol No. 1 (which is more narrowly drafted than Article 25 of the International Covenant on Civil and Political Rights) did not apply to referenda (see paragraph 40 of the judgment and the case-law referenced therein). It is noteworthy that the Court engaged with the view expressed by the minority of the Supreme Court. It accepted that at first glance it might appear anomalous that the Scottish independence referendum in which the people of Scotland were effectively voting to determine the type of legislature that they would have fell outside the sphere of protection of Article 3 of Protocol No. 1, while elections concerning the choice of the legislature fell within it. For the Court, however, this distinction found support in its case-law on the meaning of Article 3, even if that case-law had not up to now addressed a referendum of the type organised in Scotland, namely a secession referendum. It observed in this connection that there had been a number of cases concerning referenda on Contracting States\u2019 accession to or continued membership of the European Union (see, for example, \u017d. v. Latvia[215], and Nied\u017awied\u017a v. Poland[216]). It noted that in each of those cases the people were also voting to determine the type of legislature they would have, but that factor was not deemed sufficient to bring the referenda within the ambit of Article 3 of Protocol No. 1.<\/p>\n
A further point is worthy of comment. The Court noted that it has not excluded the possibility that a democratic process described as a \u201creferendum\u201d by a Contracting State could potentially fall within the ambit of Article\u00a03 of Protocol No.\u00a01. However, in order to do so the process would need to take place \u201cat reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature\u201d.<\/p>\n
The applicants also complained that the impugned prohibition also breached their rights under Article 10 of the Convention. The Court found this complaint to be outside the scope of the provisions of the Convention and its Protocols. The case-law on this point is clear: Article 10 does not protect the right to vote, either in an election or a referendum (see, for example, Luksch v. Italy[217], and Ba\u0161kauskait\u0117 v. Lithuania[218]).<\/p>\n
Freedom of movement (Article\u00a02 of Protocol No.\u00a04)<\/h2>\n
Freedom of movement<\/strong><\/p>\nThe De Tommaso[219] judgment, cited above, concerned the imposition of preventive measures on an individual considered to be a danger to society.<\/p>\n
In 2008 the District Court, considering that the applicant represented a danger to society, imposed special police supervision orders for two years, which included obligations on the applicant to report to the police once a week; to remain at home at night (from 10 p.m. to 6 a.m.), unless otherwise authorised; not to attend public meetings; and not to use mobile phone or radio communication devices. The decision was overturned on appeal seven months later, the appeal court having found that the applicant had not been a danger to society when the measures were imposed.<\/p>\n
In the Convention proceedings the applicant complained, inter alia, under Article\u00a05 of the Convention and Article\u00a02 of Protocol No.\u00a04 of the preventive measures. The Grand Chamber found, inter alia, that Article\u00a05 did not apply, but that Article\u00a02 of Protocol No.\u00a04 did apply and had been violated.<\/p>\n
Notwithstanding judgments of the Constitutional Court clarifying the criteria by which to assess the need for preventive measures under the Act in question, the Act was found to be couched in vague and excessively broad terms. Neither the individuals to whom the measures were applicable (for example, those \u201cwho, on account of their behaviour and lifestyle and on the basis of factual evidence may be regarded as habitually living, even in part, on the proceeds of crime\u201d) nor the content of certain measures (requiring, for example, one \u201cto lead an honest and law-abiding life\u201d and not to give \u201ccause for suspicion\u201d) were defined by law with sufficient precision and clarity to comply with the foreseeability requirements of Article\u00a02 of Protocol No.\u00a04 to the Convention.<\/p>\n
Freedom to choose residence<\/strong><\/p>\nThe Garib v. the Netherlands[220] judgment concerned the justification for a restriction on the freedom to choose one\u2019s residence under the fourth paragraph of Article 2 of Protocol No. 4.<\/p>\n
With a view to stopping the decline of certain impoverished inner-city districts in Rotterdam, the State enacted legislation in 2006 permitting local authorities to require persons wishing to live in such districts to obtain a housing permit. The permit would be refused to new residents not already resident locally for the preceding six years unless they had an income from work, with a view to encouraging settlement by persons who were not dependent on social welfare and thereby stopping the trend towards \u201cghettoisation\u201d in those districts. The applicant, a Dutch national and an unemployed single mother whose only income at the time was from social welfare, settled in Rotterdam in 2005 in an impoverished district which later became a designated district covered by the 2006 legislation. In 2007 she unsuccessfully applied for a housing permit to move to a different apartment in the same district, the reason given being that she had not been a Rotterdam resident for six years and did not have an income from work.<\/p>\n
She complained to the Court under Article\u00a02 of Protocol No.\u00a04. The Grand Chamber found that there had been no violation of the Convention.<\/p>\n
The judgment is noteworthy as it is the first to address Article\u00a02 of Protocol No.\u00a04 in any depth. The Grand Chamber judgment therefore provides an authoritative interpretation of, in particular, the expression \u201cfreedom to choose [one\u2019s] residence\u201d (the first paragraph of the Article) and of the conditions in which this freedom may be restricted (third and fourth paragraphs). The following elements are worth noting.<\/p>\n
(i) There had undoubtedly been a \u201crestriction\u201d on her \u201cfreedom to choose [her] residence\u201d: the applicant had been prevented from taking up residence with her family in a property of her choice and it was implicit that this property was available to her on conditions she was willing and able to meet.<\/p>\n
(ii) The impugned restriction was to be examined under the fourth paragraph of Article\u00a02. The restrictions referred to in the third and fourth paragraphs are of equal rank but they are different in scope: paragraph\u00a03 allows restrictions for specified purposes with no limit on their geographical scope and paragraph\u00a04 allows for restrictions \u201cjustified by the public interest\u201d but limited in their geographical scope.<\/p>\n
(iii) As to whether the restriction was justified, certain points are worth noting.<\/p>\n
\u2013 A wide margin of appreciation applied given the social and economic context, which included housing and town planning, the margin extending to both the decision to intervene and to the detailed rules adopted to balance the public and private interests concerned.<\/p>\n
\u2013 The judgment distinguishes between the protections afforded by Article 8 and Article 2 of Protocol No. 4. It acknowledges the interplay between the freedom to choose one\u2019s residence and the right to respect for one\u2019s \u201chome\u201d and one\u2019s \u201cprivate life\u201d and, further, that the Court had previously applied Article 8 reasoning to a complaint under Article 2 of Protocol No. 4 (Noack and Others v. Germany[221]). However, the Grand Chamber considered that it was not possible to apply the same tests under Article 2 \u00a7 4 of Protocol No. 4 and Article 8 \u00a7 2 of the Convention: while Article 8 could not be construed as conferring a right to live in a particular location (Ward v. the United Kingdom[222], and Codona v. the United Kingdom[223]), freedom to choose one\u2019s residence was at the very heart of Article 2 \u00a7 1 of Protocol No. 4, which provision would be voided of all significance if it did not in principle require Contracting States to accommodate individual preferences in the matter.<\/p>\n
\u2013 In determining whether the interference was justified, the judgment assesses the legislative framework including the relevant parliamentary debates but also (and in detail) the applicant\u2019s individual circumstances, the Court considering that it was not its role to review domestic law in abstracto. Had the Court reviewed the residence restriction as a \u201cgeneral measure\u201d, the legislative framework and choices underlying it would have been of primary importance and, the more convincing the general justifications, the less importance the Court would have attached to the impact on the applicant of the measures (see, for example, James and Others v. the United Kingdom[224]; \u017ddanoka v. Latvia[225]; Stec and Others v. the United Kingdom[226]; and Animal Defenders International v. the United Kingdom[227]).<\/p>\n
As to the legislative and policy framework, two aspects of the Grand Chamber\u2019s examination are worth highlighting. In the first place, the applicant maintained that the legislation did not have the desired effect (of stopping the trend toward \u201cghettoisation\u201d). The Grand Chamber clarified that, to the extent it was called upon to assess socioeconomic policy choices, it would do so in light of the situation at the material time and not with the benefit of hindsight. There was no evidence that the authorities\u2019 decision was at the time \u201cplainly wrong or produced disproportionate negative effects at the level of the individual affected\u201d. Indeed, the evidence was that the socioeconomic composition of the relevant districts had begun to change, the domestic authorities believed so and they had, for example, extended the measures linking them to a programme involving considerable public expenditure. In addition, the Grand Chamber reviewed the legislative history of the impugned law and, in so doing, accorded considerable importance to the inclusion of safeguards which had been prompted by Parliament and which indicated that adequate provision had been made for the rights and interests of persons such as the applicant: sufficient alternative housing had to be available locally for those who did not qualify for a permit; the designation of districts had to be reviewed every four years and the relevant minister would report every five years to Parliament on the effectiveness of the legislation and its effects in practice; and an individual hardship clause was included. The availability of judicial review (at two levels of jurisdiction satisfying Article\u00a06) provided additional protection.<\/p>\n
The present applicant\u2019s personal situation was to be assessed and, in turn, weighed against the public interest. The Grand Chamber accorded the same meaning to \u201cpublic interest\u201d as it did in an environmental-protection context under Article\u00a08: the evaluation of alternative accommodation would involve a consideration of the particular needs of the persons concerned (family requirements and financial resources), on the one hand, and, on the other, the interests of the local community. The present applicant\u2019s personal position was not particularly compelling, notably: she had not suggested particular hardship; she had refused to state why \u2013 personal preference apart \u2013 she wished to remain in the district; and it emerged that she had moved to government-subsidised housing in a different municipality just before her six-year waiting period ended. Were an unsupported personal preference to be accepted, the domestic authorities and the Court would be deprived of the possibility of weighing up the public and private interests involved and public decision-making would be overridden, in effect reducing the State\u2019s margin of appreciation to nought.<\/p>\n
___________________<\/p>\n
112. See also under Article\u00a08 (Private and family life), Paradiso and Campanelli v. Italy [GC], no.\u00a025358\/12, ECHR 2017, and K2 v. the United Kingdom (dec.), no.\u00a042387\/13, 7\u00a0February 2017; under Article\u00a08 (Private life), A.P., Gar\u00e7on and Nicot v. France, nos.\u00a079885\/12 and\u00a02 others, 6\u00a0April 2017; under Article\u00a08 (Private life and correspondence) B\u0103rbulescu v. Romania [GC], no.\u00a061496\/08, ECHR 2017; and under Article\u00a02 of Protocol No.\u00a04 (Freedom to choose residence), Garib v. the Netherlands [GC], no.\u00a043494\/09, 6\u00a0November 2017.<\/p>\n
113. See also, under Article\u00a010 below, Med\u017elis Islamske Zajednice Br\u010dko and Others v. Bosnia and Herzegovina [GC], no.\u00a017224\/11, ECHR 2017, and Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy v. Finland [GC], no.\u00a0931\/13, ECHR 2017 (extracts).<\/p>\n
114. A.-M.V. v. Finland, no.\u00a053251\/13, 23\u00a0March 2017.<\/p>\n
115. General Comment No.\u00a01 concerning Article\u00a012, which proclaims the principle of equal recognition before the law.<\/p>\n
116. A.P., Gar\u00e7on and Nicot v. France, nos.\u00a079885\/12 and\u00a02 others, 6\u00a0April 2017.<\/p>\n
117. H\u00e4m\u00e4l\u00e4inen v. Finland [GC], no.\u00a037359\/09, ECHR 2014.<\/p>\n
118. Schlumpf v. Switzerland, no.\u00a029002\/06, 8\u00a0January 2009.<\/p>\n
119. Y.Y. v. Turkey, no.\u00a014793\/08, ECHR 2015 (extracts).<\/p>\n
120. Soares de Melo v. Portugal, no.\u00a072850\/14, 16\u00a0February 2016.<\/p>\n
121. Paradiso and Campanelli v. Italy [GC], no.\u00a025358\/12, ECHR 2017.<\/p>\n
122. Mennesson v. France, no.\u00a065192\/11, \u00a7\u00a7\u00a096-102, ECHR 2014 (extracts).<\/p>\n
123. Labassee v. France, no.\u00a065941\/11, \u00a7\u00a7\u00a075-81, 26\u00a0June 2014.<\/p>\n
124. Wagner and J.M.W.L. v. Luxembourg, no.\u00a076240\/01, 28\u00a0June 2007.<\/p>\n
125. Moretti and Benedetti v. Italy, no.\u00a016318\/07, 27\u00a0April 2010.<\/p>\n
126. Kopf and Liberda v. Austria, no.\u00a01598\/06, 17\u00a0January 2012.<\/p>\n
127. S.H. and Others v. Austria [GC], no.\u00a057813\/00, \u00a7\u00a082, ECHR 2011.<\/p>\n
128. K2 v. the United Kingdom (dec.), no.\u00a042387\/13, 7\u00a0February 2017.<\/p>\n
129. Genovese v. Malta, no.\u00a053124\/09, \u00a7\u00a030, 11\u00a0October 2011.<\/p>\n
130. Ramadan v. Malta, no.\u00a076136\/12, \u00a7\u00a085, ECHR 2016 (extracts).<\/p>\n
131. B\u0103rbulescu v. Romania [GC], no.\u00a061496\/08, ECHR 2017.<\/p>\n
132. International Labour Organization Code of Practice on the Protection of workers\u2019 personal data, 1997; Directive 95\/46\/EC of the European Parliament and of the Council of 24\u00a0October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and Recommendation CM\/Rec(2015)5 of the Committee of Ministers of the Council of Europe on the processing of personal data in the context of employment.<\/p>\n
133. Osmano\u011flu and Kocaba\u015f v. Switzerland, no.\u00a029086\/12, ECHR 2017.<\/p>\n
134. Eweida and Others v. the United Kingdom, nos.\u00a048420\/10 and\u00a03 others, \u00a7\u00a082, ECHR 2013 (extracts).<\/p>\n
135. Folger\u00f8 and Others v. Norway [GC], no.\u00a015472\/02, \u00a7\u00a084, ECHR 2007-III.<\/p>\n
136. Lautsi and Others v. Italy [GC], no.\u00a030814\/06, \u00a7\u00a7\u00a059-62, ECHR 2011 (extracts).<\/p>\n
137. Adyan and Others v. Armenia, nos.\u00a075604\/11\u00a0and\u00a021759\/15, 12\u00a0October 2017.<\/p>\n
138. Bayatyan v. Armenia [GC], no.\u00a023459\/03, \u00a7\u00a0110, ECHR 2011.<\/p>\n
139. Hamidovi\u0107 v. Bosnia and Herzegovina, no.\u00a057792\/15, 5\u00a0December 2017.<\/p>\n
140. Lautsi and Others v. Italy [GC], no.\u00a030814\/06, \u00a7\u00a058, ECHR 2011 (extracts).<\/p>\n
141. Leyla \u015eahin v. Turkey [GC], no.\u00a044774\/98, \u00a7\u00a099, ECHR 2005-XI.<\/p>\n
142. Ahmet Arslan and Others v. Turkey, no.\u00a041135\/98, \u00a7\u00a043, 23\u00a0February 2010.<\/p>\n
143. Dahlab v. Switzerland (dec.), no.\u00a042393\/98, ECHR 2001-V.<\/p>\n
144. Kurtulmu\u015f v. Turkey (dec.), no.\u00a065500\/01, ECHR 2006-II.<\/p>\n
145. Ebrahimian v. France, no.\u00a064846\/11, ECHR 2015.<\/p>\n
146. See also under Article\u00a03 of Protocol No.\u00a01 (Right to free elections) below, Moohan and Gillon v. the United Kingdom (dec.), nos.\u00a022962\/15\u00a0and\u00a023345\/15, ECHR 2017.<\/p>\n
147. Med\u017elis Islamske Zajednice Br\u010dko and Others v. Bosnia and Herzegovina [GC], no.\u00a017224\/11, ECHR 2017.<\/p>\n
148. Axel Springer AG v. Germany [GC], no.\u00a039954\/08, 7\u00a0February 2012.<\/p>\n
149. Guja v. Moldova [GC], no.\u00a014277\/04, ECHR 2008.<\/p>\n
150. Heinisch v. Germany, no.\u00a028274\/08, ECHR 2011 (extracts).<\/p>\n
151. Aurelian Oprea v. Romania, no.\u00a012138\/08, 19\u00a0January 2016.<\/p>\n
152. Zakharov v. Russia, no.\u00a014881\/03, 5\u00a0October 2006.<\/p>\n
153. Animal Defenders International v. the United Kingdom [GC], no.\u00a048876\/08, ECHR 2013 (extracts).<\/p>\n
154. Magyar Helsinki Bizotts\u00e1g v. Hungary [GC], no.\u00a018030\/11, ECHR 2016.<\/p>\n
155. Von Hannover v. Germany (no.\u00a02) [GC], nos.\u00a040660\/08\u00a0and\u00a060641\/08, \u00a7\u00a7\u00a0108-13, ECHR 2012.<\/p>\n
156. Couderc and Hachette Filipacchi Associ\u00e9s v. France [GC], no.\u00a040454\/07, \u00a7\u00a093, ECHR 2015 (extracts).<\/p>\n
157. Bayev and Others v. Russia, nos.\u00a067667\/09 and\u00a02 others, ECHR 2017.<\/p>\n
158. Smith and Grady v. the United Kingdom, nos.\u00a033985\/96\u00a0and\u00a033986\/96, \u00a7\u00a0127, ECHR 1999-VI.<\/p>\n
159. Animal Defenders International v. the United Kingdom [GC], no.\u00a048876\/08, \u00a7\u00a0109, ECHR 2013 (extracts).<\/p>\n
160. Alekseyev v. Russia, nos.\u00a04916\/07 and\u00a02 others, \u00a7\u00a084, 21\u00a0October 2010.<\/p>\n
161. Schalk and Kopf v. Austria, no.\u00a030141\/04, \u00a7\u00a7\u00a091-94, ECHR 2010.<\/p>\n
162. Oliari and Others v. Italy, nos.\u00a018766\/11\u00a0and\u00a036030\/11, \u00a7\u00a0165, 21\u00a0July 2015.<\/p>\n
163. D\u00f6ner and Others v. Turkey, no.\u00a029994\/02, 7\u00a0March 2017.<\/p>\n
164. Selmani and Others v. the former Yugoslav Republic of Macedonia, no.\u00a067259\/14, 9\u00a0February 2017. See also under Article\u00a06 \u00a7 1 (Right to a fair hearing in civil proceedings \u2013 Applicability) above.<\/p>\n
165. Pentik\u00e4inen v. Finland [GC], no.\u00a011882\/10, \u00a7\u00a7\u00a089 and\u00a0107, ECHR 2015.<\/p>\n
166. Kar\u00e1csony and Others v. Hungary [GC], nos.\u00a042461\/13\u00a0and\u00a044357\/13, \u00a7\u00a7\u00a0139 and\u00a0141, ECHR 2016 (extracts).<\/p>\n
167. Becker v. Norway, no.\u00a021272\/12, 5\u00a0October 2017.<\/p>\n
168. Goodwin v. the United Kingdom, 27\u00a0March 1996, Reports of Judgments and Decisions 1996-II.<\/p>\n
169. Financial Times Ltd and Others v. the United Kingdom, no.\u00a0821\/03, \u00a7\u00a063, 15\u00a0December 2009.<\/p>\n
170. Nagla v. Latvia, no.\u00a073469\/10, 16\u00a0July 2013.<\/p>\n
171. Nordisk Film & TV A\/S v. Denmark (dec.), no.\u00a040485\/02, ECHR 2005-XIII.<\/p>\n
172. Stichting Ostade Blade v. the Netherlands (dec.), no.\u00a08406\/06, \u00a7\u00a064, 27\u00a0May 2014.<\/p>\n
173. Voskuil v. the Netherlands, no.\u00a064752\/01, \u00a7\u00a067, 22\u00a0November 2007.<\/p>\n
174. Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy v. Finland [GC], no.\u00a0931\/13, ECHR 2017 (extracts).<\/p>\n
175. Directive 95\/46\/EC of the European Parliament and of the Council of 24\u00a0October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.<\/p>\n
176. Von Hannover v. Germany (no.\u00a02) [GC], nos.\u00a040660\/08\u00a0and\u00a060641\/08, ECHR 2012.<\/p>\n
177. Couderc and Hachette Filipacchi Associ\u00e9s v. France [GC], no.\u00a040454\/07, ECHR 2015 (extracts).<\/p>\n
178. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, ETS No.\u00a0108.<\/p>\n
179. \u0160korjanec v. Croatia, no.\u00a025536\/14, ECHR 2017.<\/p>\n
180. Khamtokhu and Aksenchik v. Russia [GC], nos.\u00a060367\/08 and\u00a0961\/11, ECHR 2017.<\/p>\n
181. Nelson v. the United Kingdom, no.\u00a011077\/84, Commission decision of 13\u00a0October 1986, Decisions and Reports 49.<\/p>\n
182. A.P. v. the United Kingdom, no.\u00a015397\/89, Commission decision of 8\u00a0January 1992, unreported.<\/p>\n
183. Gerger v. Turkey [GC], no.\u00a024919\/94, 8\u00a0July 1999.<\/p>\n
184. Clift v. the United Kingdom, no.\u00a07205\/07, 13\u00a0July 2010.<\/p>\n
185. Stec and Others v. the United Kingdom [GC], nos.\u00a065731\/01\u00a0and\u00a065900\/01, ECHR 2006-VI.<\/p>\n
186. Vinter and Others v. the United Kingdom [GC], nos.\u00a066069\/09 and\u00a02 others, ECHR 2013 (extracts).<\/p>\n
187. Murray v. the Netherlands [GC], no.\u00a010511\/10, ECHR 2016.<\/p>\n
188. Carvalho Pinto de Sousa Morais v. Portugal, no.\u00a017484\/15, ECHR 2017.<\/p>\n
189. Konstantin Markin v. Russia [GC], no.\u00a030078\/06, \u00a7\u00a0127, ECHR 2012 (extracts).<\/p>\n
190. British Gurkha Welfare Society and Others v. the United Kingdom, no.\u00a044818\/11, \u00a7\u00a088, 15\u00a0September 2016.<\/p>\n
191. Alexandru Enache v. Romania, no.\u00a016986\/12, 3\u00a0October 2017.<\/p>\n
192. Dickson v. the United Kingdom [GC], no.\u00a044362\/04, \u00a7\u00a067, ECHR 2007-V.<\/p>\n
193. Khoroshenko v. Russia [GC], no.\u00a041418\/04, \u00a7\u00a0117, ECHR 2015.<\/p>\n
194. Konstantin Markin v. Russia [GC], no.\u00a030078\/06, \u00a7\u00a0132, ECHR 2012 (extracts).<\/p>\n
195. Khamtokhu and Aksenchik v. Russia [GC], nos.\u00a060367\/08 and\u00a0961\/11, \u00a7\u00a082, ECHR 2017.<\/p>\n
196. Ratzenb\u00f6ck and Seydl v. Austria, no.\u00a028475\/12, 26\u00a0October 2017.<\/p>\n
197. Schalk and Kopf v. Austria, no.\u00a030141\/04, ECHR 2010.<\/p>\n
198. Vallianatos and Others v. Greece [GC], nos.\u00a029381\/09\u00a0and\u00a032684\/09, ECHR 2013 (extracts).<\/p>\n
199. Oliari and Others v. Italy, nos.\u00a018766\/11\u00a0and\u00a036030\/11, 21\u00a0July 2015.<\/p>\n
200. Elsholz v. Germany [GC], no.\u00a025735\/94, \u00a7\u00a043, ECHR 2000-VIII.<\/p>\n
201. F\u00e1bi\u00e1n v. Hungary [GC], no.\u00a078117\/13, ECHR 2017 (extracts).<\/p>\n
202. F\u00e1bi\u00e1n v. Hungary [GC], no.\u00a078117\/13, ECHR 2017. See also under Article\u00a01 of Protocol No.\u00a01 (Enjoyment of possessions) below.<\/p>\n
203. Panfile v. Roumania (dec.), no.\u00a013902\/11, 20\u00a0March 2012.<\/p>\n
204. Valkov and Others v. Bulgaria, nos.\u00a02033\/04 and\u00a08 others, 25\u00a0October 2011.<\/p>\n
205. Heinisch v. Germany, no.\u00a028274\/08, ECHR 2011 (extracts).<\/p>\n
206. Pellegrin v. France [GC], no.\u00a028541\/95, ECHR 1999-VIII.<\/p>\n
207. Vilho Eskelinen and Others v. Finland [GC], no.\u00a063235\/00, ECHR 2007-II.<\/p>\n
208. P. Plaisier B.V. and Others v. the Netherlands (dec.), nos.\u00a046184\/16 and\u00a02 others, 14\u00a0November 2017.<\/p>\n
209. Koufaki and Adedy v. Greece (dec.), nos.\u00a057665\/12\u00a0and\u00a057657\/12, 7\u00a0May 2013.<\/p>\n
210. Mamatas and Others v. Greece, nos.\u00a063066\/14 and\u00a02 others, 21\u00a0July 2016.<\/p>\n
211. F\u00e1bi\u00e1n v. Hungary [GC], no.\u00a078117\/13, ECHR 2017. See also under Article\u00a014 taken in conjunction with Article\u00a01 of Protocol No.\u00a01 above.<\/p>\n
212. B\u00e9l\u00e1n\u00e9 Nagy v. Hungary [GC], no.\u00a053080\/13, \u00a7\u00a0117, ECHR 2016.<\/p>\n
213. Davydov and Others v. Russia, no.\u00a075947\/11, 30\u00a0May 2017.<\/p>\n
214. Moohan and Gillon v. the United Kingdom (dec.), nos.\u00a022962\/15\u00a0and\u00a023345\/15, ECHR 2017.<\/p>\n
215. \u017d. v. Latvia (dec.), no.\u00a014755\/03, 26\u00a0January 2006.<\/p>\n
216. Nied\u017awied\u017a v. Poland (dec.), no.\u00a01345\/06, 11\u00a0March 2008.<\/p>\n
217. Luksch v. Italy, no.\u00a027614\/95, Commission decision of 21\u00a0May 1997, Decisions and Reports 89-B.<\/p>\n
218. Ba\u0161kauskait\u0117 v. Lithuania, no.\u00a041090\/98, Commission decision of 21\u00a0October 1998, unreported.<\/p>\n
219. De Tommaso v. Italy [GC], no.\u00a043395\/09, ECHR 2017. See also under Article\u00a05 (Right to liberty and security) above, Article\u00a06 \u00a7 1 (Right to a fair hearing in civil proceedings \u2013 Applicability) above and Article\u00a037 (Striking out) below.<\/p>\n
220. Garib v. the Netherlands [GC], no.\u00a043494\/09, 6\u00a0November 2017.<\/p>\n
221. Noack and Others v. Germany (dec.), no.\u00a046346\/99, ECHR 2000-VI.<\/p>\n
222. Ward v. the United Kingdom (dec.), no.\u00a031888\/03, 9\u00a0November 2004.<\/p>\n
223. Codona v. the United Kingdom (dec.), no.\u00a0485\/05, 7\u00a0February 2006.<\/p>\n
224. James and Others v. the United Kingdom, 21\u00a0February 1986, Series A no.\u00a098.<\/p>\n
225. \u017ddanoka v. Latvia [GC], no.\u00a058278\/00, ECHR 2006-IV.<\/p>\n
226. Stec and Others v. the United Kingdom [GC], nos.\u00a065731\/01\u00a0and\u00a065900\/01, ECHR 2006-VI.<\/p>\n
227. Animal Defenders International v. the United Kingdom [GC], no.\u00a048876\/08, \u00a7\u00a7\u00a0106-12, ECHR 2013 (extracts).<\/p>\n
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