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CASE LAW

A steady growth in case loads has characterized both the European Commission and the European Court on Human Rights. In its early years, the Commission picked few and generally safe cases, seeking to build Europe-wide support for its activities. Up until 1991 some 19,000 cases had been presented to the Commission; less than 3,000 were returned to governments for comment, and, finally, only 1,000 were admitted, most of them being settled by friendly means or through a decision of the Committee of Ministers. Meanwhile, 345 applications were filed before the Court, which rendered 307 judgments. Monetary compensation was awarded to 143 petitioners and in two-thirds of the cases brought before it, the Court found the Convention had been violated. At the same time, the European Court�s cases steadily increased; from 1959 to 1985 the Court, the world�s longest standing international human rights court, heard approximately 100 cases, but heard the next 100 cases in the four year period, 1985 to 1989. Its caseload increased steadily thereafter. During the first six months of 1994 it delivered judgments in 24 cases. Italy holds the docket record (136 cases, in 82 of which the Court found violations by April 1995). Many of the cases revolved around a single issue, long delays in prosecutors bringing cases to trial. The United Kingdom had 73 cases, 35 involving violations; France, 62 cases, 29 involving violations; Austria, 55 cases, 27 violations; Sweden, 32 cases, 21 violations, and Belgium, 34 cases, 20 violations. Germany has participated in 28 cases with 11 violations, Denmark six cases, two violations, Norway, three cases, one violation. ⁹

In 1996 12,143 communications were received; 2,236 of them � slightly more than 18% � concerned countries of central and eastern Europe. 4,758 of the applications were registered, 892 of them complaints of human rights violations in central and eastern European countries. The 1994-1996 figures indicate a steady rise in cases from these countries. The 1996 number of applications include Bulgaria 35, Czech Republic 77, Lithuania 41, Poland 458, Romania 118, Slovakia 80 and Slovenia 19. ¹⁰

A special category of cases are the inter-state cases, less than 20 in the Court�s history to date. Generally highly political in nature, they include Greek accusations against the United Kingdom for alleged mistreatment of prisoners in Cyprus, Ireland accusing the United Kingdom of similar behavior toward prisoners, and numerous cases against the Greek military regime in the 1970s. Prof. Ralph Beddard, Senior Lecturer in the Faculty of Law, Southampton University, writes: �The inter-state procedure was bound to be founded, for the greater part, on unfriendliness in the relations between states, and the cases, in the main, bear this out. Although the applications against Turkey and those against Greece were brought by states with little economic or cultural contact with the Respondent States, and were occasioned by the seriousness of the violations, they illustrate the weakness of the Commission within the arenas of large-scale politics and diplomacy. The application by Ireland v. United Kingdom seemed, to a great extent, to be politically motivated, while the Cyprus v. Turkey application was a direct result of hostilities between the two parties. However, one should not dismiss such inter-state applications as serving no purpose, since one of the objects of the Convention is to publicize atrocities and, accordingly, motive is not entirely relevant.� ¹¹

If the Convention is the skeleton, case law is the flesh that gives it life, and after nearly a half-century of existence a great number of cases are available as precedent. The decisions of the Commission and Court are published regularly in Strasbourg and are available in printed and electronic form from the Council of Europe. Details for obtaining such information are contained elsewhere in this volume. Gomien states: �The case law from these bodies adds to the substance of the Convention, giving it form and life beyond the instrument itself. Their interpretations of such ideas as the rule of law and democratic society form the foundation of the European human rights system, and provide strong guidelines for Eastern and Central European countries aspiring to become part of that system.� ¹²

The Court has a dual role, that of deciding cases brought to it and monitoring the domestic laws and practices of Contracting States. In this regard, it has gradually assumed the functions of an international constitutional tribunal. At the same time, the Court�s essential case load involves unsatisfied complaints by individuals against states. Merrills states: �The issue here is what it means to have a particular right and how the balance is to be struck between such competing interests as, for example privacy and national security, or prompt trial and the limitation of public expenditure.� ¹³

Until now, cases have emanated primarily from Western Europe, but that will change as new members join the Council of Europe and subscribe to its legal institutions. Only a few leading cases can be referred to here, following the categories listed in the articles of the European Convention.

Article 1: States shall Secure Rights and Freedoms for �everyone within their jurisdiction�

While conventional international treaties apply primarily to citizens of a given country within that country�s boundaries, the language of Article 1 of the European Convention is much more expansive, securing rights and freedoms to �everyone within their jurisdiction.� Subsequent case law has secured these rights, not only for citizens, but for aliens, stateless persons, children, the disabled, and those otherwise lacking legal capacity. Nationals from more than 80 countries have filed petitions before the Commission, more than three times the number of High Contracting Parties to the Convention. Thus countries must bring their domestic law into compatibility with the Convention. Moreover, Article 64 prohibits general reservations; new states ratifying the Convention must then meet its obligations from the time the document enters in force in a given country.

Any consideration of Article 1 must consider as well Article 63 which allows a High Contracting Party to broaden the Convention�s coverage to �all or any of the territories for whose international relations it is responsible.� Jurisdiction, in short, is not territorially limited, but encompasses the idea of State jurisdiction over individuals through the activities of State organs or authorities.

Article 2: Right to Life

Article 2 concerns the right to life and should be considered together with Protocol 6 abolishing the death penalty. This article should not be interpreted as guaranteeing any certain quality of life or standard of rights for citizens, its primary purpose is to safeguard against any arbitrary deprivation of life by the State. Likewise, the controversial issue of abortion rights is not dealt with in this article. The Commission agreed that recognizing the unconditional right to life of a fetus would be contrary to the intent of the Convention in (Appl. No 8416/78). Elsewhere, it found States may conditionally restrict a woman�s rights to an abortion without violating the woman�s right to privacy, (Br�uggemann and Scheuten, Comm. Rept. of 1977). The question of fetal rights is left undiscussed in this case. Article 2 of the Convention does not state that life begins at conception.

Protocol No. 6 to the Convention calls for abolition of the death penalty, with a few narrow exceptions. Gomien notes: �In addition to the capital punishment exception of Article 2 (1), Article 2 (2) provides for three additional, albeit circumscribed, exceptions to the prohibition against the intentional depravation of life. The first is in defense of any person from unlawful violence, the second is in effecting a lawful arrest or preventing the escape of a detainee, and the third is in quelling a riot or insurrection. The principle governing the exercise of State discretion in applying any of these exceptions is that any force must be �no more than [is] absolutely necessary.� � ¹⁴

Capital punishment is allowed under severely restricted conditions through the second sentence of Article 2 (1). A comparison with the UN Covenant on Civil and Political Rights is instructive. The UN document, in its Article 6, acknowledges the possibility of the death penalty, but seems to treat it as a transient phenomena on its way to disappearing. The death penalty is expressly prohibited for persons below the age of 18 and for pregnant women. Robertson and Merrills state: �Article 2 of the Convention must now be read in conjunction with Protocol No. 6 which...prohibits the death penalty in time of peace. As a result of this modification, European arrangements were for a time more progressive than those of the Covenant, at least as regards parties to the Protocol. However, with the adoption in 1989 of a protocol to the Covenant which likewise outlaws the death penalty, the two systems are now broadly in line on this issue.� ¹⁵

Article 3: Torture, Inhuman or Degrading Treatment or Punishment

The historical roots of Article 3 are Article 5 of the Universal Declaration of Human Rights, and its content is given wider scope in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force in January 1987, and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which entered into force in February 1989. Given the World War II context from which the human rights accords arose, it is understandable that rights to be free from torture and inhuman and degrading treatment would hold a special place in the pantheon of rights enumerated in the international human rights instruments.

Article 3 of the Convention does not define torture, but a 1975 UN General Assembly Declaration states that �Torture constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment.� The Commission interprets �torture� to mean �inhuman treatment, which has a purpose such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment.� ¹⁶

The Commission and the Court have employed two factors to interpret provisions of this article, the degree of severity of conduct and the extent of institutionalized practices. Under degrees of severity of conduct, the relevant cases are Denmark, France, Norway, Sweden and the Netherlands v. Greece (the 1969 �Greek case�) and Ireland v. the United Kingdom (1978). In these cases Torture constitutes �deliberate inhuman treatment causing very serious and cruel suffering.� Inhuman Treatment or Punishment is �the infliction of intense physical and mental suffering� and Degrading Treatment is �ill-treatment designed to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.�

Ireland�s complaint against the United Kingdom, filed in 1971, charged the latter with violations of Article 3 of the Convention, resorting to torture and degrading treatment, while interrogating detainees in Northern Ireland. Relevant here is the fact that the United Kingdom, invoking Article 15, stated it was derogating from certain rights agreed to in the Convention. The Irish argued, and the Court affirmed, that Article 3 rights could not be derogated. The heart of the Irish case was that various persons taken into custody by the British forces had been subject to torture and inhuman and degrading treatment in violation of Article 3, and that internment without trial, as was widely practiced by the British forces in Northern Ireland, was a violation of Article 5, guaranteeing the right to liberty and security of person. (Between August 1971 and June 1972 3,276 persons were processed by police at various holding centers; the Irish filing alleged 228 specific cases of police brutality.) Objections centered on five techniques used in interrogation, wall-standing (forcing detainees to remain for long periods of time with their fingers high above their heads against the wall and their legs spread apart and feet pushed back, forcing them to stand on their toes with their body weight mainly on their fingers), hooding (a dark colored bag was kept over detainees� heads except when they were being interrogated), subjection to noise (keeping detainees in a room with a loud continuous hissing noise), sleep deprivation and deprivation of food and drink. By March 2, 1972 the British government had agreed �that the techniques...will not be used in future as an aid to interrogation.� Moreover, between 1971 to 1975 plaintiffs in domestic courts, alleging ill-treatment by security forces obtained compensation totaling �302,043 in settlement of 473 civil cases for wrongful arrest, false imprisonment, and assault and battery, leaving 1,193 civil cases outstanding.

The Court concluded that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in violation of Article 5. ¹⁷ Gomien states: �Listing such factors as sex, age and state of health of the victim [the Court] noted (in Ireland v. the United Kingdom, ed.) that a given practice must reach a minimum level of severity in order to constitute a violation of the article. For example, the Court states that �degrading� does not mean merely disagreeable or uncomfortable.� ¹⁸

Extradition and Expulsion Cases

A special category of cases deserve comment, cases when an applicant claims they will be subject to treatment in violation of Article 3 if they are expelled from the country in which they are residing to another country, often their country of origin. The cases are complicated because the European Convention does not guarantee a person a right to reside in a particular country, nor a right not to be expelled, although Article 4 of Protocol 4 forbids the collective expulsion of aliens. Sometimes, however, the Commission will consider a case when the applicant pleads expulsion would subject that person to persecution and possible death. In one case, a Turkish applicant filed against the Federal Republic of Germany, arguing that, as a political activist, his extradition to Turkey would surely result in torture and persecution. The Commission accepted the case, but the applicant committed suicide before it was resolved, so the case was removed from the list. ¹⁹

An important case under Article 3 was (Chahal v. United Kingdom) (1996). Here the Court, sitting in Grand Chamber, ruled the order to evict to India a Sikh separatist for national security reasons violated, should it be implemented, the absolute prohibition of torture and of inhuman or degrading treatment. Chahal, resident in the United Kingdom since 1971, became active in support of an independent Sikh homeland after visiting the Punjab in 1984. In August 1990 the Home Secretary decided to deport him on national security grounds, claiming Chahal was assisting Punjab terrorists, charges which Chahal categorically denied. Since August 16, 1991 he was held in a British prison. He applied for political asylum, claiming he would be a victim of torture and persecution if deported to India, a petition the Home Secretary denied. The matter continued in dispute, with moves and counter-moves until 1996, when the Court found a violation of Article 3 of the ECHR, fearing for the defendant�s safety if he was returned to India. The Court wrote:

�It was well-established in the case law of the Court that expulsion by a Contracting State might give rise to an issue under Article 3 ECHR where substantial grounds had been shown for believing that an individual, if expelled, would face a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. The Court was well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibited in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the person in question.� ²⁰

In the same case, the Court did not find Chahal�s detention violated Article 5 (1), but found it violated Article 5 (4) because the United Kingdom, in detaining the defendant for six years, violated his rights. The Court stated: �It was possible to employ techniques which both accommodated legitimate security concerns about the nature and sources of intelligence information and yet accorded the individual a substantial measure of procedural justice.�

Article 4: Slavery and Forced Labor

Relatively few cases have been raised under this category to date. Under Article 4(3) (c) the Commission declined to accept several cases, excluding from the definition of forced or compulsory labor the requirement of conscientious objectors to perform military service. Gomien observes: �This provision does not oblige any High Contracting Party either to recognize conscientious objection or to exempt conscientious objectors from serving in alternative employment for periods of time equivalent to those served by military recruits.� ²¹

Article 5: Liberty and Security of Person

This pivotal Article has its antecedents in Article 3 of the Universal Declaration of Human Rights and has, in turn, influenced other human rights instruments, such as Article 9 of the International Covenant on Civil and Political Rights. The focus of Article 5 is on freedom from arbitrary arrest and detention, essentially the conditions of physical liberty.

The case law that has developed on this article rejects as restrictions on individual freedom such usual requirements as that aliens register, periodic curfews be established, or that vehicular traffic be subject to regulation. In one case (Guzzardi v. Italy) (1980) the Court held that a person confined to a portion of an island with severely limited social contacts could be considered to be deprived of his liberty. Guzzardi was a Mafia leader with a long criminal record who was arrested, charged, and placed in detention. (Italian law allows for up to two years in such detention). In January 1975 the Milan Regional Court ordered the defendant to reside on the small island of Asinara until he was returned to the mainland the following July, where he was convicted of terrorist offenses, and sentenced to 18 years in prison. A majority of the Court found that confinement on the island was a depravation of Guzzardi�s liberty and awarded him compensation of one million Italian lira.

Additionally, there is no provision for a person under Article 5 to waive their rights, even if they surrender to the police. In the often-cited opinion (DeWilde, Ooms and Versyp v. Belgium) (1971) the Court held:

�The right to liberty is too important in a �democratic society� within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention.�

Although a state may detain someone after that person is convicted by a competent Court, continued detention is not acceptable where prison authorities arbitrarily lengthen a prisoner�s time in jail administratively for allegedly committing a triable offense. (Van Droogenbroeck v. Belgium) (1982). Commenting on this case, specifically in that it invoked Article 5 (1) (e), Robertson and Merrills write: �An unusual feature of the Vagrancy cases was that the applicants had initially reported voluntarily to the police. Relying on this, the government argued that their detention was in each case the result of a request and as such, could not be a violation of Article 5. The Court, however, had no hesitation in rejecting this argument. Pointing out that a person may give himself up to the police out of temporary distress or misery, but that this in no way denotes that he is properly to be regarded as a vagrant, the Court explained that in any event, the detention procedure which formed the subject of the complaint was mandatory rather than contractual.� It then said:

�Finally, and above all, the right to liberty is too important in a �democratic society� within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it. When the matter is one which concerns ordre public within the Council of Europe, a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees is necessary in every case.� ²²

Several cases have been considered under Article 5 (1) (c) in efforts to combat terrorism. The Court held it was illegal to detain a person without bringing them before a court or without intending to bring them to trial in (Lawless v. Ireland) (1961) but issued a contrary opinion in (Brogan v. United Kingdom) (1988). Here the Court held detaining applicants was not illegal if they were held for further police investigations to develop a case where concrete suspicions were evident. The meaning of the word �promptly� was the focus of the Brogan case. Four applicants were held under the United Kingdom�s Prevention of Terrorism (Temporary Provisions) Act of 1984 and were held for four to five days each, questioned about terrorist incidents, but never charged. The Court acknowledged the special circumstances of the disturbed political-military climate in Northern Ireland, but still held that the periods of detention in police custody were longer than permitted by proper legal concepts of promptness, and thus their rights under Article 5 (3) had been violated. Robertson and Merrills note: �The decision in Brogan leaves no room for doubt that the word �promptly� in Article 5 (3) will be interpreted strictly and with only a limited degree of flexibility to cater for special circumstances.� ²³

Article 5 (1) (b) (d) (e) and (f) discuss civil cases of detention. This includes detention to ensure than an individual complies with �any obligation prescribed by law� but this provision does not mean detention to force compliance with a contractual obligation. Article 1 of Protocol No. 4 forbids �deprivation of liberty merely on the ground of inability to fulfill a contractual obligation.�

Pretrial Detention

Article 5 (3) requires that any one held under provisions of Article 5 (1) (c) must be promptly brought before a judicial authority. The judge is required to hear the petitioner and the person being detained must be brought before the judge, who must review all relevant information before deciding whether or not the person should be detained. (Schiesser v. Switzerland) (1979). In (Skoogstr�m v. Sweden) (1984) the Court declared that if a state official held the role of both prosecutor and investigator this did not meet the law�s requirements.

Gomien concludes: �The Court has accepted as initial grounds for detention such factors as likelihood of flight from the jurisdiction (Neumeister v. Austria) (1968), (St�gm�ller v. Austria) (1969), and (Matznetter v. Austria) (1969) and the risk of the committal of further offenses (Matznetter). However, the Court has made it clear that Article 5 (3) does not intend a State to detain an individual indefinitely. In the St�gm�ller case, the Court noted that if the �reasonable suspicion� criterion of Article 5 (1) (c) ceases to apply, continued detention becomes unlawful by the very terms of Article 5 (1) (e). The Court further noted that even if a �reasonable suspicion� continued to exist, this was not the sole determinative factor to justify continued detention in all cases. In the Neumeister, St�gm�ller, and Matznetter cases, the Court held that the introduction of the possibility of bail minimized the danger of flight, thereby rendering continued detention on these grounds unacceptable. In the Matznetter case, however, the Court held that the risk of committal of further offenses remained as sufficient grounds for continued detention, although rejecting this argument in the cases of St�gm�ller and Ringeisen v. Austria (1971). ²⁴ Even this seemingly restricted application of Article 5 (3) has had an impact on the governments of Austria and Germany, causing them to review their law and practice. As a result, both countries modified their Codes of Criminal Procedure, limiting the time of remand in custody to six months except in special circumstances.� ²⁵

In (Aksoy v. Turkey) (1996) the Court found a violation of Article 5 (3) when it detained the defendant fourteen days, even if Turkey had filed a notice of derogation of Article 5, describing PKK terrorist activity as �a public emergency threatening the life of a nation.� The Court found violations of Article 3 when the individual, in good health, was discovered with injuries when released from police custody. Linking Article 3 with Article 13, the Court found the defendant had been denied an effective remedy in law when state agents failed to investigate incidents of torture in a manner allowing those responsible to be identified and brought to justice. The Court wrote: �under Turkish law the Prosecutor was under a duty to carry out an investigation. However, despite the visible evidence that the applicant had been tortured, no investigation took place. Moreover, in the circumstances of the applicant�s case, such an attitude from a State official under a duty to investigate criminal offenses was tantamount to undermining the effectiveness of any other remedies that may have existed.� ²⁶

Parenthetically, the Court denied the claim of Aksoy�s representatives that he was killed as a direct result of his application to the Commission. Thus it concluded that no violation of Article 25 (1), the right of individual petition, was established.

Habeas Corpus

Article 5 (4) allows an individual deprived of their liberty through arrest or detention to petition the courts in a speedy manner. An extensive body of jurisprudence has built up around this issue. The key question: is judicial review of the legality of the detention available? Most cases brought under this article argue that the failure of a country to provide systematic reviews of the legality of detention violates the meaning of
the article. The Court found in (DeJong, Baljet and Van den Brink v. Netherlands) (1983) a six-to-eleven day delay was excessive for a first review of a detention decision.

The accused must be given access to files used by investigating authorities in their review of a decision to detain the accused on remand (Lamy v. Belgium) (1989).

Right to Compensation

Article 5 (5) provides compensation for �everyone who has been the victim of arrest or detention in contravention of the provisions of� Article 5. Gomien writes: �In order for the Commission or Court to find a violation of Article 5 (5), it must first find a violation of one or more of the rights protected by the preceding paragraphs of the article. It is important to note that the right to compensation under this provision is a right an individual claims from national authorities, as he does any of the other rights delineated in Section 1 of the convention.� ²⁷ At the same time, Article 50 permits the Court to �afford just satisfaction to certain individuals filing complaints. The Court has concluded the two Articles are not exclusive one of the other and that it is permissible to invoke either or both in claiming compensation for false arrests. ²⁸

In summary, the six categories under which a person�s liberty can be deprived in Article 5 (1) constitute exceptions to the established rights to personal liberty and security. There is a lack of legal symmetry to their enumeration and they contain no stricture against �arbitrary� arrest and the whole category of what constitutes justifiable or unjustifiable restrictions is left undiscussed. A recent commentary states: �In practice, such areas as discipline in prison or by the military, child and age care, camps for refugees or war prisoners, and other strict regimes may raise issues under Article 5 (1). Sometimes they have to be seen as not covered by any of the categories, and thus prohibited. But in most countries the law prohibits one person from detaining another in homes, or hospitals for children, psychiatric patients and other handicapped groups. Many borderline cases arise in such environments. However, the recognized categories under Article 5 (1) are flexible on some points. Therefore detention in forms other than prisons or similar institutions may well be covered, if the law provides for it.� ²⁹

Article 6: The Right to a Fair Hearing
(Should be considered with Article 13 and Protocol No. 7, articles 2 and 4.)

This is a broadly cast Article, containing several provisions not falling easily within other sections of the Convention. Additionally, it is often invoked by applicants raising objections not only about the violation of a specific right but about the procedural application of the law or their treatment by judicial authorities. It follows then that the jurisprudence accumulated under this Article is somewhat amorphous.

The presumption of innocence and the right to a fair trial are key provisions of this Article which is much more detailed than similar provisions in the Universal Declaration. Article 6�s first paragraph opens with a general statement of right which closely resembles the Declaration�s Article 10. As might be expected, this Article, like Article 5, has provoked much case law. Many litigants cast a broad net by invoking numerous due process provisions of this Article.

A recent commentary notes: �One important principle at issue in cases alleging a violation of the right of access to court is that the state cannot restrict or eliminate judicial review in certain fields or for certain classes of individuals. Some of the important cases challenging state practices in this area have been brought by prisoners. In the Golder case, a prisoner who wished to bring a civil action for defamation against a prison guard who had falsely accused him of instigating a prison riot had had his letters to both a solicitor and the European Commission of Human Rights censored and withheld by the prison authorities. The European Court of Human Rights found a violation both of his right to correspondence under Article 8 and his right to access under Article 6 (1). ³⁰

An important case about due process of law and assuring access to courts is (Airey v. Ireland) (1979). Here the Court held that, under Article 6 (1), refusing to grant legal aid to a penniless woman attempting to obtain a judicial separation from an abusive husband violated her right of access to the courts. A commentary on the case notes: the Court held �that the Convention had been violated because the prohibitive cost of obtaining a judicial separation in Ireland meant that the applicant had been deprived of an effective right of access to a court. Although there was no formal barrier, Mrs. Airey lacked the means to engage a lawyer and there was no legal aid available. In the Court�s view this was enough to infringe her rights under Article 6 (1). ³¹

While Article 6 does not allow for a right to appeal a criminal conviction, Protocol No. 7, Article 2 provides such a right.

Article 6 (1): �Civil Rights and Obligations�

In the Commission�s view, the term �civil rights and obligations� �cannot be construed as a mere reference to the domestic law of the High Contracting Party concerned, but, on the contrary, relates to an autonomous concept which must be interpreted independently of the rights existing in the law of the High Contracting Parties.� ³²

Both the Commission and Court give a broad interpretation to the concept of �civil rights and obligations.� In (Ringeisen v. Austria) (1971), the Court held these terms to be autonomous. Hence, the distinction between private and public law matters is inconsequential. Ringeisen appealed to an Austrian Regional Land Commission, an administrative tribunal, to transfer farmland for building purposes. The legal question was did the proceedings before an administrative body, instead of a court, constitute a setting where the idea of a �civil right� and standards of a fair trial should apply? The Court concluded such proceedings were covered by Article 6 (1). It argued that the nature of the tribunal did not matter, nor did the character of the legislation, the basic issue, the Court found, was that if Ringeisen had correctly completed the terms of purchase in the land contract, he was meeting his obligations under Austrian law. Therefore the Regional Commission was simply applying Austrian Administrative law and its decision �was to be decisive for the relations in civil law� in the sale.

It is important to note there is no stricture that a dispute must be heard by a body which meets the Article 6 (1) criteria at every stage. Article 6 (1) states �everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly.� The Commission and Court accept the position that, while such specialized administrative tribunals do not always provide the requisite due process guarantees, the Convention is not violated provided they are subject to a judicial body which can take full jurisdiction of the case and render an independent, impartial, and fair verdict. ³³

In (Doorson v. the Netherlands) (1996) Doorson was arrested in April 1988 on several drug possession charges. Six drug users who preferred to remain anonymous for fear of reprisals identified him to police, as did two other witnesses, one of whom never appeared at the trial, the other of whom withdrew his earlier statement. Doorson�s counsel appealed to the Court under Article 6 (1) and 6 (3), citing his inability to question the witnesses. The Court disagreed, arguing that a fair trial is one in which defense interests must be balanced with those of the state, in particular to protect its witnesses against possible reprisals and allowed the witnesses to remain anonymous. ³⁴

Criminal Charges

A leading case on due process in a criminal charge is (Barber�, Messegu� and Jabaro) (1988). The trio were arrested in Barcelona in 1980 shortly after a Catalan business representative had been assassinated by a terrorist group. Although the suspects signed a statement acknowledging their role in the killings, they later repudiated the confession, arguing they had been forced to sign the document after being ill-treated. After a one day hearing in Madrid two years later, two of the defendants were convicted of murder, the other of a lesser charge. In their appeal to the Commission, and later the Court in Strasbourg, they complained they were denied a fair trial. The Court concluded Article 6 (1) had been violated for several reasons, evidence of a key witness was on file but the defense was never given an opportunity to examine the witness, the conditions under which the confessions were obtained were flawed, there were reports of evidence, including documents and weapons, entered at the trial but never produced by the prosecution for defense examination, two trial judges were substituted at the last moment, suggesting they had not familiarized themselves with the 1,600 page case before the one day trial was held, plus numerous other procedural flaws. ³⁵

Both the Commission and the Court give broad interpretation as to what constitutes a criminal charge. For example, in (Eckle v. Federal Republic of Germany) (1982) the Court said a criminal charge is an �official notification given to an individual by competent authority of an allegation that he has committed a criminal offense.� In (Foti and Others v. Italy) (1982) the Court broadened the concept to include �other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect.� ³⁶

The Equality of Arms Principle

Procedural equality, or equality of arms, applies equally to civil and criminal cases, but is raised more often in criminal cases where the question of whether or not the accused has been placed at a disadvantage in relation to the prosecution is raised. Equality of arms issues are raised both in relation to the treatment of witnesses and to the whole institutional framework in which the trial is held. Gomien writes: �The most important of the unarticulated principles of Article 6 is the �equality of arms�- the idea that each party to a proceeding should have equal opportunity to present his case, and that neither should enjoy any substantial advantage over his opponent.

The issue of equality of arms has arisen in numerous cases, such as (Neumeister v. Austria) (1968). Here the Court said both parties in a criminal proceeding must be represented at all points when a case is under examination. In (Bonisch v. Austria) (1985) the Court held that expert witnesses for both sides must be heard, and in (Feldbrugge v. Netherlands) (1986), it concluded each party must be given the opportunity to oppose the arguments of the other.� ³⁷

Article 6 (1): Independent and Impartial Tribunal Established by Law

Independence and impartiality are central to any concept of a fair judicial system, and the case law that has developed around this concept has interpreted it to mean courts must be both independent of the executive branch and of the parties to the case. The Court has looked at the manner in which members are named to such bodies, and the length of their appointments. A difficult issue for the Court to weigh is the presence of civil service employees on administrative tribunals. On the one hand, their expertise in a given subject, such as labor law or social security regulations, is invaluable; on the other, their presence risks challenges that the tribunal will be unduly balanced in favor of the State. Much of the case law on impartiality has centered on the role of judges who have performed dual functions, such as being both trial judge and previously being a prosecutor in a case. For example, in Piersack the President of the Belgian Assize Court had once been a Senior Public Prosecutor in a case which was now before his Court. The European Court, accepting the Commission�s earlier finding, concluded Article 6 (1) had been violated, saying �what is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused.� ³⁸

Gomien writes: �Not only must courts themselves be empowered to determine the outcome of cases, but the State may not arbitrarily transfer jurisdiction between courts and administrative tribunals of various kinds. The principle underlying the independence and impartiality clause is separation of powers, but neither the Convention itself nor the Convention organs dictate the means by which this requirement should be met. However, it is clear from the case law that members of the executive branch should not be charged with prosecution of the law....In the case of (DeCubber v. Belgium) (1984), it was not acceptable for the investigating judge and the trial judge to be the same person, and in the (Piersack v. Belgium) case (1982) the same result obtained when the president of the tribunal had earlier been the public prosecutor on the case being adjudicated.� ³⁹

Article 6 (1): The �Reasonable Time� Standard

Three factors have emerged as the test of whether or not judgment is delivered within a reasonable time, the complexity of the case, the manner in which judicial authorities have dealt with it, and the applicant�s own conduct in the case. What constitutes a �reasonable time� standard differs in criminal and civil cases; in criminal cases the time begins when a competent authority notified an individual they have committed a criminal offense. (Deewer v. Belgium) (1980). �The Court has rejected governmental arguments that inadequate staffing or general administrative inconvenience are sufficent justifications for failure to meet the �reasonable time� standard (DeCubber v. Belgium) (1984) and (Guincho v. Portugal) (1984).� ⁴⁰ However, in another case the Court held in (Pretto and Others v. Italy) (1983) six years of procedure at the local level and six years of review in Strasbourg was still within the �reasonable time� standard.

In several civil divorce cases the Court held Article 6 was violated when a case took nine years (Bock v. Federal Republic of Germany) (1989), when it took over seven years to move a case from one level to another of the French court system (H v. France) (1989) and when it took over six years to reach a final determination and establish damages in a Portuguese case (Neves e Silva v. Portugal) (1989).

Public Hearings and the Pronouncement of Judgment

Article 6 (1) provides �a fair and public hearing� for everyone and that �judgment shall be pronounced publicly.� The Court�s position is:

�The public character of proceedings before the judicial bodies referred to in Article 6 (1) para 1 protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 (1) para 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society.� ⁴¹

Several Article 6 issues were touched in (John Murray v. United Kingdom) (1996). Murray was arrested on January 7, 1990, in the house where a provisional Irish Republican Army informer had been held captive. Murray was denied access to an attorney for 48 hours, the argument being it would interfere with police operations against terrorism. Murray kept silent during twelve police interviews and this was held against him at trial. The Court, however, found that his insistence in maintaining silence throughout the proceedings did not amount to a criminal offense or to contempt of court under Northern Irish legislation. ⁴² Additionally, the Court found the denial of access to legal counsel to the defendant for 48 hours when he was detained by police was a breach of Article 6 (1).

Article 6 (2): The Presumption of Innocence

The important idea of the presumption of innocence is found in Article 6.(2). The focus on presumption of innocence begins with the domestic court; did local judges act in such a way that the presumption of innocence was evident in the proceeding from the beginning? It is the prosecutor�s role to prove guilt, and the accused must be allowed the right of offer evidence in rebuttal. A key early case was (Minelli v. Switzerland) (1983). Here the petitioner claimed that the assessment of court costs and compensation in a case against him which had expired under the statute of limitations violated presumption of innocence as established in Article 6 (2). In agreeing, the Court wrote: �Without the accused�s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defense, a judicial decision concerning him reflects an opinion that he is guilty.�

Five years later, in (Barber�, Messegu� and Jabaro v. Spain) (1988) the Court set standards for compliance with the Article: �When carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offense charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defense accordingly, and to adduce evidence sufficient to convict him. ⁴³

Many presumption of innocence cases treat the question of pre-trial publicity. Here the applicant must show that their conviction was adversely affected by the publicity, which may be difficult if the accused has contributed to raising the publicity level, as in the case of a terrorist gang or publicity-seeking defendant.

A recent commentary notes: �The guarantee of the presumption of innocence is one of the fundamental principles of Article 6. It cannot dictate the impossible: that no innocent person shall ever be found guilty. But in return everyone�even the guilty�has the right to be presumed innocent until final judgment. The right to be presumed innocent has several dimensions and effects, some relative, some absolute. The most obvious and well known application is the principle in dubio pro reo: the accused is entitled to the benefit of the doubt. This means that the burden of proof is primarily on the prosecution, and that even if the Court itself has a duty to investigate the facts, as is the case in some systems, any doubts about the evidence must favor the defense. The right to be presumed innocent attaches only to an individual charged with a criminal offense, and thus does not arise with the �determination of civil rights and obligations.� � ⁴⁴

Article 6 (3): The Rights of the Defense

Article 6 (3) enumerates five specific rights of the defense in a criminal case. Taken together, their intent is to ascertain that prosecution and defense are playing on a level playing field. Everyone is �to be informed promptly, in a language which he understands, and in detail, of the nature and cause of the accusation against him.� Article 6 (3) (a). In the 1989 Brozicek case the Court found in favor of a German resident who complained that an Italian court�s charges against him were never properly made known to him, and that his trial in absentia was therefore invalid. He had been sent two letters in Italian, one to the wrong address, and the Italian authorities were unable to prove that Brozicek had adequate fluency in that language sufficient to understand the charges brought against him.

In a related case, the Court found against the defendant, Kamasinski, who had been arrested in Austria on several charges of fraud and misappropriation. The defendant did not understand German, so an interpreter was provided, along with legal assistance. Kamasinski argued that his due process had been violated because the charges had been presented him in oral rather than written form, but the Court concluded from the evidence, and from the defendant�s behavior, that he had sufficient knowledge of the charges against him, and that therefore his rights had not been violated under the provisions of Article 6.

Article 6 (3) (b): Time and Facilities to Prepare a Defense

The issue of adequate time to prepare a defense is important and many cases under this article have come about because of defendants� finding undue delays in the trial and important information being withheld from them. Attorneys need time to prepare cases, especially human rights cases which are not the usual practice of most lawyers. Also, if an attorney is replaced on a case, it requires time for a new attorney to prepare the case for trial. A defendant in a criminal case, generally represented through their attorney, should be provided with the case assembled by the prosecution, including both the specific charges and the legal reasoning and evidence used to support the charges. This is the intent of Article 6 (3). Additionally, the Commission has held that �facilities� as mentioned in paragraph (b) mean allowing an accused person to become familiar with the outcome of the authorities� investigations. To meet the standards of this provision, the prosecution is required to allow access to all relevant documentation. ⁴⁵

Article 6 (3) (c): The Right to Legal Assistance

The accused has the right �to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.� The Court has established that, in a criminal case, a defendant without legal assistance is entitled to counsel. If the defendant is unable to pay for the lawyer�s services, the cost should be assumed by the Court. A significant feature of Article 6 (3) (c) is that it guarantees the accused not merely pro forma legal assistance, but effective legal assistance. In the Artico case an Italian court had named an attorney to assist a defendant in the preparation of his case. The attorney, claiming ill health and a busy work schedule, declined the case. The applicant invoked Article 6 (3) (c) to the Court, and the Italian government responded it had fulfilled its obligations in appointing the original lawyer and had no further responsibilities in this regard. The Court found this totally unacceptable:

�The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defense in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive...As the Commission�s Delegates correctly emphasized, Article 6 (3) (c) speaks of �assistance� and not of �nomination�... Adoption of the government�s restrictive interpretation would lead to results that are unreasonable and incompatible with both the wording of sub-paragraph (c) and the structure of Article 6 taken as a whole; in many instances free legal assistance might prove to be worthless.� ⁴⁶

An additional argument advanced by the government in this case was that, while the applicant could not afford a lawyer, it was not obliged to provide legal assistance because the case was so clear-cut no defense was necessary. The Court rejected this argument.

Article 6 (3) (d): The Right to Confront Witnesses

Here the accused has the right �to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.� In a finding the Commission has noted this �does not permit an accused person to obtain the attendance of any and every person and in particular of one who is not in a position by his evidence to assist in establishing the truth.� ⁴⁷

The Court has been consistent in its jurisprudence in finding the testimony of anonymous witnesses unavailable for examination by the defence to be a violation of Article 6 (3) (a). Three leading cases where witnesses were given special protected status are (Kostovski v. Netherlands) (1989), (Windisch v. Austria) (1990), and (Unterpertinger v. Austria) (1986). Unterpertinger was convicted from testimony given by his wife and stepdaughter, evidence he could not challenge since they had been granted special status under Austrian law. The Commission accepted the Austrian government�s position that, since neither side could question the exempted witnesses, no basic inequality existed between the two parties to the case. Still, the Court held that the defendant�s Article 6 rights had been violated, since the local court had allowed the witnesses� in support of several key accusations against the defendant, who had been prohibited from confronting his accusers. ⁴⁸

Kostovski had a long criminal record and, once he had escaped from prison, was seen by two witnesses participating in a bank robbery. Fearing reprisals, they declined to appear at his trial. Kostovski was convicted on the basis of these anonymous reports given to the police and examining magistrates. Notwithstanding, the Commission and Court held that the applicant�s rights had been breached under Article 6 (3) (d). Robertson and Merrills write: �In principle, the Court explained, all the evidence has to be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, statements obtained at the pre-trial stage could be used as evidence provided the rights of the defense had been respected. As a rule, those rights required that the accused be given, at some stage in the proceedings, an adequate and proper opportunity to challenge and question a witness against him. In the Court�s view such an opportunity had not been given in the present case. At no stage could the anonymous witnesses be questioned directly by the applicant or his representative. In addition, written questions which the applicant or his representative was allowed to put had been restricted by the decision to preserve the witnesses� anonymity. Indeed, this had compounded the applicant�s difficulty because �if the defense is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile, or unreliable.� � ⁴⁹

The Court�s actual wording in this case is instructive:

�If the defense is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defense will scarcely be able to bring this to light if it lacks the information permitting it to test the author�s reliability or cast doubt on his creditability. The dangers inherent in such a situation are obvious.� ⁵⁰

The Unterpertinger case presents a different set of issues. Here the defendant was convicted of bodily harming his wife and stepdaughter, both of whom made statements to the police, neither of whom would testify in the actual case. Following Austrian practice, their statements were read in court and this constituted the principle evidence against Unterpertinger. Robertson and Merrills write: �Examining the circumstances of the applicant�s trial, the Court pointed out that his conviction was based mainly on the statements of his wife and stepdaughter which had been treated by the Austrian courts not simply as items of information, but as proof of the truth of the accusations against him. Although it was for the Court of Appeals to assess the evidence, it had refused to allow the applicant to adduce evidence to put the creditability of his wife and stepdaughter in doubt. In view of this the applicant had been convicted on the basis of �testimony� in respect of which his defense rights were appreciably restricted. Accordingly here, as in the Kostovski case, the Court concluded that the applicant did not have a fair trial and there was therefore a breach of Article 6 (1), taken together with the principles inherent in Article 6 (3) (d).� ⁵¹

The Question of Effective Remedies

The right to a fair hearing provisions of Article 6 should be considered in conjunction with several other articles, including Protocol No. 7, Articles 2 and 4 and Article 13. The Convention�s Article 13 states �an effective remedy before a national authority� is available to any person whose rights have been violated. Gomien notes: �Although these words appear to present a fairly straightforward legal concept, Article 13 has presented more problems of interpretation for the Commission and the Court than has any provision of the Convention.� ⁵²

Key cases include (Klass and Others v. Federal Republic of Germany) (1978), (Silver and Others v. United Kingdom) (1983), (Leander v. Sweden) (1987) and (Abdulaziz, Cabales and Balkandali v. United Kingdom) (1985). In Silver the Court wrote: �Where an individual has an arguable claim to be the victim of a violation set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress.�

Article 7: Freedom from Retroactive Criminal Legislation

The specific intent of Article 7 is to protect an individual from being convicted of a criminal charge that did not exist in law at the time the act was committed. The same Article prohibits a State from imposing a more severe penalty on an individual criminal offender than the penalty in force at the time the act was committed. Article 7�s first paragraph corresponds to the comparable Article in the Universal Declaration.

There is a pattern to the drafting of Articles 8 through 11, establishing rights in the first paragraph, limiting them in the second, perhaps reflecting the political caution drafters of the late 1940s, writing when the future powers of the state and their relation to individual rights were by no means clear. If the Convention were drafted today, it is doubtful such a formula would be employed, since it makes it difficult to enunciate what exactly is a right. Additionally, in a mature democracy courts can be expected to match the statement of rights with applicable case law and precedent in deciding cases. A result of this green light�red light approach to human rights law drafting is a jurisprudence that is elaborate, nuanced, and at times contradictory. For example, the tension between individual and states� rights is described in a Court decision: �Some compromise between the requirements for defending a democratic society and individual rights is inherent in the system of the Convention...a balance must be sought between the exercise by the individual of the right guaranteed...and the necessity...for the protection of the democratic society as a whole.� ⁵³ The Court has rejected any idea that there is any doctrine of inherent limitations to rights and freedoms listed in the Convention and instead applies a two-fold test in cases where the state has claimed such a restriction: first, was the interference �in accordance with law;� second, was it �necessary in a democratic society.� If the interference was not �in accordance with law,� the Court will find a violation against the state. The Court has held: �It would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.� ⁵⁴

Commenting on the �necessary in a democratic society� clause, Gomien, Harris, and Zwaak write: �The supervisory organs have rejected the notion that states may apply the �necessary in a democratic society� clause in a vacuum. They must always tie it to one of the more specific clauses in the same restricting provision. A few of these specific restrictions appear in several Articles: others appear in only one or two. �Public safety� and �the protection of health or morals� appear in all four Articles. �National security� and � the prevention of disorder or crime� appear in Articles 8, 10, and 11; �protection of the rights and freedoms of others� in Articles 8, 9, and 11. Three of the four articles contain unique restrictions as well. Article 8 mentions �the economic well-being of the country,� Article 9 �the protection of public order,� Article 10 �territorial integrity,� �the protection of the reputation or rights of others,� �preventing the disclosure of information received in confidence,� and �maintaining the authority and impartiality of the judiciary.� ⁵⁵

Article 8: The Right to Respect for Private and Family Life, Home and Correspondence
(See also Articles 8 and 12 and Protocol No. 7, Article 5)

A difference between Article 8 and its companion documents, Article 16 (3) of the Universal Declaration and Article 23 (1) of the Covenant on Civil and Political Rights, is that Article 8 focuses on individual members of a family, whereas the family unit as such is the subject of the other instruments. Gomien, Harris, and Zwaak state: �The doctrine of non-interference by the state is, as far as Article 8 is concerned, firmly established in the right to privacy. In a democratic society, the individual is entitled to live his daily life without the state�s monitoring or controlling his activities. The Court confirmed this primary duty of the state to abstain from interference in its judgment in the Airey case, stating that the object of Article 8 is �essentially that of protecting the individual against arbitrary interference by the public authorities.� For example, private citizens have a general right to receive uncensored mail, to live without publicity, and to establish and develop relationships with other persons.� ⁵⁶

Robertson and Merrills quote a definition of privacy, with reference to Article 8: lumping together the four headings of privacy, family life, home and correspondence. ⁵⁷

Privacy is defined as:

�1. Protection of the individual�s physical and mental inviolability and a person�s moral and intellectual freedom.
2. Protection against attacks on an individual�s honor or reputation and assimilated torts.
3. Protection of an individual�s name, identity or likeness against unauthorized use.
4. Protection of the individual against being spied on, watched or harassed.
5. Protection against disclosure of information covered by the duty of professional secrecy.� ⁵⁸

Homosexuality

An issue facing legal systems in Central and Eastern Europe is how to treat questions involving homosexual activity. Robertson and Merrills write: �Whether the punishment of homosexuality infringes Article 8 is an important question which has been considered on several occasions. In an early decision the Commission took the view that a German law which criminalized homosexual practices constituted an interference with private life but could be justified under Article 8 (2) as necessary for the protection of health and morals. Subsequently, however, in the Dudgeon case the Commission held that a similar law in Northern Ireland could not be so justified and when the matter was then referred to the Court, it came to the same conclusion. Soon afterwards equivalent legislation in the Irish Republic was challenged in the Norris case and again the decision was that it violated the Convention. As the reasoning in these cases would appear to be generally applicable, it can now be regarded as settled that the criminalization of homosexuality is contrary to Article 8.� ⁵⁹

Articles 8 to 11: Grounds for Restricting the Exercise of Rights
(See Articles 8 to 11, paragraph 2, and Article 2 of Protocol 4, plus Articles 17 and 18).

In these articles, as noted above, specific rights and freedoms are enumerated in the first paragraph, then grounds to limit the rights and freedoms follow. The intent of this seemingly contradictory approach to legal drafting is to balance individual rights with the broader interests of the state. Several western democracies take a different approach, the rights are clearly stated in a Bill or Charter of Rights and the Courts, through precedent and case law, establish their parameters. Some newly independent states in Central and Eastern Europe have expressed concern that the restrictive clauses, familiar from the earlier Russian Constitution, are easy to invoke as ways of limiting individual rights and freedoms. As might be expected, this issue provoked much debate within the Commission and Court and can be expected to do so as more central and eastern European countries join the Council of Europe.

Given the broad nature of the restrictive clauses, the Commission sought a narrow interpretation of their meaning in a landmark case, (Sunday Times v. United Kingdom) (1979). Here the court wrote:

�Strict interpretation means that no other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions, and these criteria, in turn, must be understood in such a way that the language is not extended beyond its ordinary meaning.�

�Strict interpretation� requires any limitations of rights and freedoms to be both lawful and �necessary in a democratic society.� In considering a case where a state has employed one or more of this article�s limiting clauses, Commission and Court ask was the State action done �in accordance with law�. If the action does not meet this legal test, the Commission or Court will declare a violation and the review process is terminated. Assuming, however, that the legality standard is met, the Commission or Court will next consider if the action can be classified as �necessary in a democratic society,� having as its purpose one of the topics listed in the applicable article, such as the preservation of public order, national security, or the protection of health or morals. ⁶⁰

Interpreting �in accordance with law� and �prescribed by law�

In the Sunday Times case two standards of lawfulness were established, that the law must be both accessible and foreseeable to the citizen, and its application not be a capricious act by the State:

�Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules in a given case. Secondly, a norm cannot be regarded as �law� unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.�

In (Malone v. United Kingdom) (1984) the Court established that use of State power must be for legitimate aims:

�It would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on by the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.�

Interpreting �necessary in a democratic society�

To the requirements of lawfulness described in �In accordance with law� and �prescribed by law� comes a third category, the restriction must be one that is �necessary in a democratic society.� Here the Court has given wide discretion to a State to determine what is democratic within its own boundaries. In (Handyside v. United Kingdom) (1976) the Court wrote:

�By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements...as well as on the �necessity� of a �restriction� or �penalty� intended to meet them.�

In the Handyside case the Court noted, as it has in several cases, that courts and countries have an obligation to both promulgate local and European standards. For instance, a country cannot invoke vague concepts of general unrest or necessity as grounds to limit individual rights and freedoms (Greek case) (Comm. Rept. of 1969). Also, the Commission and Court apply modern standards of political governance in their review of such cases, promoting the growth of political pluralism, tolerance, and broadmindedness in civic governance, none of which were stated in the Convention, which was written in the late 1940s, but all of which have become part of later UN, OSCE and Council of Europe political-legal thought.

How is the �necessary in a democratic society� standard to be interpreted? Convention bodies have devised a two-part analysis; first, they ascertain if the restriction�s purpose is legitimate. The Court found that controlling prisoners� correspondence (Golder and Silver), or prohibiting homosexual activity for young men under twenty-one are legitimate aims (Dudgeon v. United Kingdom) (1981) and (Norris v. Ireland) (1988). Second, the question is are the means used to restrict the particular right or freedom �proportionate to the legitimate aim pursued.� Gomien notes: �This requirement is often more difficult for the State to meet. For example, in the prisoners� correspondence cases, the Court held that the authorities could not prevent a prisoner from writing to his lawyer (Golder), and could only censor letters threatening violence or planning future crimes (Silver). In the homosexuality cases, the Court refused to accept that criminalizing homosexual acts of consenting adults met the proportionality standard.� ⁶¹

Article 8: Rights to Privacy, Family Life, Home and Correspondence, to Marry and Found a Family, to Equality of Spouses

(This Article should be considered in conjunction with Article 12 and Protocol 7, Article 5)

It is difficult to break this broad category of rights down into discrete units, since many of the topics overlap. This discussion, therefore, will highlight key issues raised in the various categories.

A leading case is (Marckx v. Belgium) (1979) where a mother and her natural child challenged Belgian laws requiring the mother to obtain legal status for her daughter by taking certain specific steps. The Court ruled the State�s requirements to constitute a violation of the right of family life. It held:

�When the State determines in its domestic legal system the regime applicable to certain family ties...it must act in a manner calculated to allow those concerned to lead a normal family life.�

In (Airey v. Ireland) (1979) the Court found against the Irish government for declining legal assistance to a woman who sought a separation from a violent husband. The Court held:

�Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life.�

Electronic Surveillance and Data Collection on Individuals

In (Klass and Others v. Federal Republic of Germany) (1978) during a criminal investigation petitioners claimed government surveillance violated their privacy rights. However, the Court found that the Federal Republic of Germany laws on surveillance were carefully drafted and it followed that the State�s need to protect itself against �imminent dangers� threatening its �free democratic constitutional order� justified its actions. Beddard writes: �The Klass case, which was referred to the Court in 1978, concerned surveillance and interception of mail and telecommunications in Germany. The applicants, a group of lawyers, complained that legislation passed in 1968 restricted the right of secrecy of mail, post and telecommunications in that it authorized surveillance, in certain circumstances, without the need for informing the person concerned. The Court was in no doubt that such a procedure was contrary to Article 8, but the cardinal issue was whether the interference was justified under Paragraph 2. That Paragraph, emphasized the Court, must be narrowly interpreted. It was of the opinion that �Powers of secret surveillance of citizens, characterizing as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding democratic institutions.� The Court felt that, in view of the threat posed to democracy nowadays by highly sophisticated forms of espionage and by terrorism, some powers of secret surveillance were necessary. Whatever system is employed, however, there must exist adequate and effective guarantees against abuse. After examining the German legislation the Court came to the conclusion that no breach of Article 8 could be found.� ⁶²

In (Malone v. United Kingdom) (1984) the Court dealt with police wiretapping, finding the United Kingdom law on wiretapping overly vague. The Court wrote:

�It would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.� In two French cases the Court held that French laws failed to meet the legality requirement enumerated in Article 8. (Huvig v. France) (1990) and (Kruslin v. France) (1990).

In (Gaskin v. United Kingdom) (1989) the Court found against the State for failing to heed the applicant�s requests for access to his case records. Gomien writes: �In this case the United Kingdom authorities had refused to supply a young man who had spent virtually his entire childhood in a series of foster homes, with all the records relating to his time in public care, on the grounds that the information therein had originally been provided in confidence and that consent could not be obtained from those who had supplied it. The Court first balanced the interests of the young man, in obtaining information about his own life, against those of third parties, in preserving confidentiality, and the State, in encouraging the compilation of objective and reliable information. Although finding such �balancing� within the scope of the State�s margin of appreciation, the Court nevertheless found a violation of Article 8 in that no procedure existed whereby an independent authority could take a final decision to release records in instances where a contributor either could not be found or unreasonably witheld his consent.� ⁶³

Family Life, the Right to Marry, the Equality of Spouses

Family life has been interpreted by Commission and Court to include ties between near relatives including, in addition to the nuclear family, grandparents and grandchildren. Commission and Court decisions tend to favor vertical family relationships, such as those including minor children, parents, and grandparents, to horizontal ones, like siblings, nieces, and nephews.

Gomien writes: �The strongest evidence of the existence of �family life� is proof that those claiming the right already enjoy such a life. However, the Court had held that �this does not mean that all intended family life falls entirely outside [Article 8�s] ambit� (Abdulaziz, Cabales and Balkandali v. United Kingdom) (1985) in which women who were legally married or engaged have been unable to establish fully normal family life due to restrictive immigration laws in force in the United Kingdom). Conversely, the Court has held that the State cannot legitimately act to break up a family unit on the divorce of parents (Berrehab v. Netherlands) (1988), in which a Moroccan father who had married and divorced in the Netherlands, but who maintained close contacts with his very young daughter and contributed regularly to her material support, successfully claimed that a deportation order against him constituted a violation of Article 8.� ⁶⁴

On issues involving parents and children, a significant number of cases have developed. The Marckx case deals with the legal consequences of illegitimacy. Under Belgian law, only if the mother formally acknowledges maternity of an illegitimate child can the child be declared legitimate. Notwithstanding, the child�s rights to inheritance and gifts were appreciably less than those of a legitimate child. In Marckx a mother and her illegitimate daughter took issue with these restrictions, basing their claims on Articles 8 and 14 and Article 1 of Protocol No. 1. Both Commission and Court held in favor of the applicants under Article 8. The right of the applicants to respect for their family life was found violated by the Belgian law�s requirements. Regarding inheritance rights, the bodies concluded Article 8 had not been violated because this statute does not discuss the question of inheritance. ⁶⁵

On another issue, that of monitoring electronic devices, the issue is to what extent is monitoring of communications by electronic devices compatible with Article 8. Convention bodies must tread a careful path. There are two conflicting issues: in many countries, the control of security questions is guided by rather vague language, not often subject to judicial review. Thus the requirement that the action be �in accordance with the law� must be balanced against the national security interest. Robertson and Merrills believe the Commission and Court have done this quite successfully, �neither setting an unreasonably strict standard, nor being too easily satisfied. Thus in the Malone case the Court and the Commission found that the English law on the interception of telephone communications was insufficiently precise and in the Kruslin and Huvig cases came to the same conclusion as regards the French scheme. In the Klass case, on the other hand, which concerned German arrangements for secret surveillance which were based on legislation laying down strict conditions and procedures, this requirement was found to be satisfied.� ⁶⁶

Article 9: Freedom of Thought, Conscience and Religion

�Thought,� �belief,� conscience,� and �religion� cover a wide spectrum. Gomien writes: �To date, the Commission has only once found a breach of Article 9 (Darby v. Sweden) (Comm. Rept. of 1989): the Court has never done so. In part, this is because the rights of freedom of thought, conscience and religion are largely exercised inside an individual�s heart and mind. It is only when one manifests one�s thoughts or beliefs that the State will become aware of their existence or character. But at that very point a given manifestation may also raise issues in the realm of freedom of expression (Article 10) or another article of the Convention. Where a case raises issues under Article 9 in addition to other articles, the Commission and Court invariably choose to limit their review to alleged violations of those other articles.� ⁶⁷

For example in once case (Arrowsmith v. United Kingdom) (Comm. Rept. of 1978) a British pacifist said her freedom of belief was being violated by the United Kingdom Government when it prohibited her from distributing leaflets to soldiers, encouraging them to become conscientious objectors and not accept military assignments to Northern Ireland. The Commission found the case came, not under Article 9, but under Article 10 concerning freedom of expression. Here, though, it found the State�s position to be legitimate in defending its national security interests and maintaining order within its military force.

Elsewhere the Commission has determined that under Article 9 a State must allow an individual to leave a church and, likewise, a State cannot force an individual to make financial contributions, usually through taxes, to a state church (Appl. No 9781/82) and (Appl No. 9781/82).

Conscientious Objectors

As for the issue of conscientious objectors, the Commission did not find a violation of Article 9 when Switzerland imposed a criminal sentence on a man who refused military service (Appl. No. 10640/83) and in a similar case when the Federal Republic of Germany declined to allow an exemption from alternative civilian service (Appl. No. 7705/76).

Beddard comments: �Conscientious objection from military or substitute service has been the subject matter of several applications. Mr. Grandrath, who was a Jehovah�s Witness, complained that although he was a conscientious objector he was required by the Federal German authorities to do substitute service which was contrary to his religious beliefs. The question arose, first of all, whether the Convention�s terms included the right of conscientious objection. Article 4 of the Convention, in one of the exceptions to the rule forbidding forced or compulsory labor, says that service exacted instead of military service is acceptable for conscientious objectors �in countries where they are recognized.� There would seem to be, therefore, no automatic right to conscientious objection. Article 14 of the Convention says there shall be no discrimination of enjoyment of the Convention�s rights on, inter alia, religious grounds, and Grandrath complained that ministers of religion in some churches in Germany were excused substitute service whereas he, as a Jehovah�s Witness, was not allowed such exemption. The Commission was of the view, however, that the restriction in Germany was imposed to avoid widespread avoidance of military service, was based on function, and that, since Mr. Grandrath�s ministry was only in his spare time, there was no case of discrimination. In an Application in 1983, however, the complaint was that Jehovah�s Witnesses were allowed exemption from military and substitute service in Sweden, whereas the applicant, a pacifist, was not. The Commission�s view here was that membership of such a religious sect as the Jehovah�s Witness was an objective fact which created a high degree of probability that exemption was not granted to persons who simply wished to escape service.� ⁶⁸

In summary, freedom of religion under Article 9 (1) includes freedom to change one�s religion, and the freedom to teach and practice it. Freedom of religion also includes the freedom not to participate in religious activities. Hence compulsory religious services or teaching violates provision of the Convention. Additionally, public manifestations of religion are subject to regulation under Article 9 (2). These include holding public services, processions and other manifestations. Public religious demonstrations sometimes have a provocative intent, and Commission and Court practice is to grant a wide margin of appreciation in the application of this Article. ⁶⁹

Article 10: Freedom of Expression

There is a close relationship between the contents of Articles 9 and 10, and parts of Articles 8 and 11. Also, Article 10 is grounded in Article 19 of the European Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights. The wording of Article 10 is broader than in some other articles, including the �freedom to hold opinions and to receive and impart information and ideas.�

The Commission in 1985 reviewed a complaint where the applicants, broadcast professionals, argued a prohibition of television broadcasts of a trial violated their Article 10 rights and the public�s right to know the details of an important judicial proceeding (Appls. Nos. 11553/85 and 11658/85). Although the Commission found the complaint inadmissible, it still referred to both Article 10 and Article 6:

�Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual�s self-fulfillment. Of particular importance, in this context, is the freedom of the press to impart information and ideas and the right of the public to receive them.�

Next the Commission further described the importance of the right to a fair trial in a democratic society, a right provided for by Article 6.1 of the Convention. It also underlined the importance attached to public coverage of trials as an important way through which public confidence in a transparent judicial system is maintained. Notwithstanding, the Commission, in supporting the trial judge�s prohibition against media coverage of the trial, concluded:

�It is clear from the reasons given by the trial judge for the Order that he considered it necessary to protect the proper administration of justice and...[the] right to a fair trial...[T]hese aims correspond to the purpose of �maintaining the authority and impartiality of the judiciary� as set out in Article 10.2 of the Convention. ⁷⁰

An important early case before the Commission came from an applicant who complained that a life-time prohibition on publishing, part of his conviction for war time treachery, constituted a violation of freedom of expression under Article 10 (DeBecker v. Belgium) (1962). The Belgium government responded the restrictions were justifiable under Articles 2 to 7 of the Convention, both of which permit the imposition of penal sanctions. The Commission disagreed, stating:

�Where the penal sanction in question involves a deprivation or restriction of the right to freedom of expression, it runs counter to the whole plan and method of the Convention to seek its justification in Articles 2, 5 and 4 dealing with the right to life, to liberty and to scrutiny of the person and to freedom from forced labor, rather than in Article 10, which guarantees the right to freedom of expression.� ⁷¹

The right to freedom of expression means a person �shall include freedom to hold opinions and to receive and impart information and ideas.� (Handyside v. United Kingdom) (1976) was a case about an individual publishing a reference book for school children; its content also contained sexual advice. The Court said the State was acting within its rights in the �protection of morals� to ban distribution of the book, but also laid out standards for freedom of expression: �Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man...It is applicable not only to �information� or �ideas� that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.�

Freedom of the Press

The jurisprudence developed under this topic is extensive. The main case to emerge to date is (Sunday Times v. United Kingdom) (1979). In this case, the Court held that the public had a right to know the facts about the story even if some of the issues were still before the local court in litigation. The case established a high level of protection for a free press, the argument being a democratic people are best served by the widest possible sources of information. In this case the applicants had prepared an article about a pharmaceutical company�s research and testing procedures before releasing the drug thalidomide, a sedative, for sale. The drug was alleged to cause severe birth defects in babies whose mothers had taken it during pregnancy. (This information was gained apart from the newspapers). Some families had concluded out-of-court settlements with the company, others were still in negotiation, and still others had just begun legal action when the pharmaceutical company received an advance copy of the newspaper story. At that point the firm sought, and was granted, an injunction against its publication. The injunction was sustained on appeal, the local courts holding that publication of the article would constitute contempt of court because legal proceedings on the issue were still working their way through the courts. When the matter reached the Court, the latter ruled the injunction interfered with the newspaper�s right to freedom of expression contained in Article 10 (1). The Court reasoned that one purpose of the law on contempt was to protect the power and independence of the courts. This was a legitimate restriction allowed by Article 10 (2), the Court stated, but another legal issue must be considered at the same time, was banning the article �necessary in a democratic society?� Here the Court found the United Kingdom government failed to prove the injunction against publication was necessary because of a �pressing social need� nor was it �proportionate to the legitimate aim pursued.� Gomien writes: �The Court highlighted several facts as important to its judgment, for example, the breadth and the unqualified restriction of the injunction, the moderate nature of the specific article being enjoined, the length and dormant nature of the legal proceedings and the settlement negotiations, and the extensive public debate engaged concerning the subject matter of the article. The Court also addressed the Government�s argument that it had properly balanced two public interests, in freedom of expression and in the fair administration of justice, by stating:

�There is general recognition of the fact that the courts can not operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialized journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has the right to receive them.�

The Court held that the families involved in the thalidomide tragedy:

�Had a vital interest in knowing all the underlying facts and the various possible solutions. They could be deprived of this information, which was crucially important for them, only if it appeared absolutely certain that its diffusion would have presented a threat to the �authority of the judiciary.� � ⁷²

Commenting on the Sunday Times case, Robertson and Merrills note the Court: �placed great emphasis on press freedom and the concept of the press as an essential component of a democratic society in its reasoning. It also relied on the principle that restrictions on the Convention�s rights and freedoms are to be strictly construed. This clearly has the effect of reinforcing the case for freedom of publication. For if freedom of expression is the primary principle and the administration of justice a limited exception, restriction requires a very strong justification. To the minority judges, on the other hand, although freedom of expression was important, the Court�s task was to balance competing and correlative objectives. Finding that the disputed injunction was restricted in both its subject matter and its duration, they concluded that as a justly proportionate response, it met the requirements of the Convention.� ⁷³

Another important freedom of the press case, this one involving defamation of a highly-placed politician, was (Lingens v. Austria) (1986). Here a magazine editor published two articles sharply critical of the Chancellor of Austria, raising questions about his suitability to hold office. The Chancellor replied with two defamation suits against the editor, both of which were sustained in Austrian courts. When the editor took the case to the Court at Strasbourg, claiming his freedom of expression rights were violated under Article 10, the Court agreed:

�freedom of the press...affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large... Article 10 (2) enables the reputation of others...to be protected, and this protection extends to politicians too...but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.�

Next the Court took issue with Austria�s defamation law for placing the burden of proof on the accused to establish the veracity of their statements. The Court stated:

�A careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof...[under Austrian law]. Journalists in a case such as this cannot escape conviction...unless they can prove the truth of their statements...As regards value-judgments, this requirement is impossible of fulfillment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention.�

Concerning the Austrian government�s application of sanctions against a journalist for criticizing a highly-placed political figure, the Court held this:

�Amounted to a kind of censure, which would be likely to discourage him from making criticisms...in the future...In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog.�

Both the Sunday Times and Lingens cases demonstrate that the Commission and Court frequently accord a high level of protection to media under Article 10. Many Court opinions stress the importance the media play in a democratic society, through promoting the public debate of issues, through helping keep the political system transparent, and through making public figures accountable for their actions. ⁷⁴

The Lingens case also raises an important question, what are the limitations raised in protecting the reputation or rights of others under Article 10 (2)? �Reputation� raises the perennial question of balancing the protection of a person�s good name with the public rights of freedom of speech. Case law focuses on two issues, freedom of expression and the extent of a margin of appreciation.

The Lingens case is about a Viennese journalist and magazine editor who published two articles strongly criticizing Austrian Chancellor Bruno Kreisky. Kreisky successfully sued the applicant for defamation, the writer received both a prison sentence and a fine. However, the Court, in reviewing the case under Article 10, cited the principles relating to freedom of expression established in earlier cases, and thus rejected the government�s position that the applicant could be found guilty under Article 10 (2).The Court held that politicians can understandably be held to a higher level of public scrutiny than private citizens and that individuals who wish to avoid criticism should stay out of politics. Additionally, the Court rejected arguments that the main purpose of the press is to convey factual information and that journalistic opinion does not enjoy the same high level of legal protection. ⁷⁵

Political Speech

The Commission and Court have taken a small number of cases involving the political speech of politicians. In one such case, a member of the Spanish Parliament wrote an article finding the government responsible for the activities of Basque terrorists. As a result, the deputy�s parliamentary immunity was lifted and he was convicted of defaming the State. The Court held this was a violation of his human r