ECHR on Arts 6, 8 and 10

Logo of the Council of Europe.The European Convention on Human Rights (ECHR) was promulgated by the Council of Europe in 1950. The European Court of Human Rights was established under that Convention to enforce the rights protected by it, and it has recently handed down three very interesting judgments concerning Articles 6 (fair trial), 8 (privacy), and 10 (speech).

Article 6(1) provides that

… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

ECHR blog brings news of Application no 22330/05 Olujic v Croatia (05/02/2009), in which adverse public comments by three judges in advance of hearing a case against the applicant denied him a fair hearing within the meaning of Article 6. What makes the case all the more interesting is that Olujic had been President of the Supreme Court, the case concerned his dismissal from the bench for publicly fraternising with known criminals, the three judges had publicly and adversely commented about this after the allegations had been made, and one had been a rival candidate for the Presidency of the Court.

Article 8(1) provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.

TJ and OUT-LAW bring news of Application no 1234/05 Reklos and Davourlis v Greece (11/12/2008) (in French; press release in English) in which the taking of photographs of a baby in a clinic without the parents’ consent constituted a breach of Article 8, even though the photographs had not been published. In classical conceptions, privacy is invaded as much by intrusion upon the private sphere (as the ECHR itself has already implied) as by publication of intimate details (as the ECHR has already held in the context of photographs). Photographs are thus potentially twice-damned: the taking of the photograph can itself constitute an intrusion, whilst its publication can amount to a further invasion of privacy.

Article 10(1) provides:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

ECHR blog and First Amendment Law Prof Blog bring news of Application no 31276/05 Women on Waves v Portugal (03/02/2009) (in French; press release in English) in which the use of a warship to block the entry of a ship to Portugal to prevent its crew from disseminating information about abortion was unanimously held to have infringed Article 10. From an Irish perspective, perhaps the most interesting aspect of the case was the Court’s repeated reliance upon and affirmation of its previous decision in Application no 14234/88 & 14235/88 Open Door and Dublin Well Woman v Ireland (29/10/1992) [1992] ECHR 68 which had also found that a ban on abortion information infringed Article 10. More than that, these case involve prior restraints upon speech, and although the ECHR – unlike the Supreme Court of the US – has not announced a presumption against prior restraints, it has held that because of the dangers inherent in them, they call for the most careful scrutiny on the part of the Court (a point which has been echoed by Fennelly J in the Irish Supreme Court). The ECHR did not make this point in in Women on Waves, but it demonstrates just how hard it will be for a to escape condemnation on the basis of Article 10.

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