The ever-informative ECHR blog brings news of an interesting article on the margin of appreciation jurisprudence of the European Convention on Human Rights (which has been examined on this blog here and here). It is the doctrine by which the ECHR affords Members States some initial latitude to assess the impact of a restriction upon a Convention right; the Court takes the view that national authorities are usually better placed to determine the particular circumstances of an individual case; and it often shows greater forebearance where important national interests and diverse social and moral convictions are at stake. But it is a doctrine developed by the Court itself rather than one rooted in the text of the Convention, and it is a deeply contentious issue. The article traces the debates surrounding the doctrine, and locates them in a current complex social, cultural and religous controversy.

From the introduction and the conclusion:

Raffaella Nigro “The Margin of Appreciation Doctrine and the Case-Law of the European Court of Human Rights on the Islamic Veil” (2010) 11 (4) Human Rights Review 531-564

In its judicial activity, the European Court of Human Rights increasingly resorts to the margin of appreciation doctrine as a means of granting States the discretionary power to adopt, both positive steps to comply with the European Convention on Human Rights and steps which, although interfering with some of the rights and freedoms sanctioned by it, are considered to be justifiable because they are necessary to preserve public order and/or to protect the rights and freedoms of others in a democratic society. However, the margin of appreciation doctrine does not appear in the text of the European Convention or in its drafting history. This is the reason why, on several occasions, legal scholarship has examined the legal basis of such doctrine and questioned the consequences of the use the European Court makes of it within the protection of the human rights system. Manifold theories have thus been put forward justifying the Court’s recourse to the discretionary power of States. As we shall illustrate, these theories offer only a partial, yet insufficiently clear, explanation of the margin of appreciation doctrine. This is apparent in the European Court’ case-law on the Islamic veil — lastly in the recent admissibility decisions of 30 June 2009 in Aktas v. France, Bayrak v. France, Gamaleddyn v. France and Ghazal v. France — in which the power granted to some State authorities to ban the headscarf, seems to have been used by the Strasbourg judges to set general principles, in a manner and for purposes that are incompatible with the discretionary powers of States. Before analysing the margin of appreciation doctrine in the European Court’s jurisprudence on the Islamic veil, we should briefly analyse the most significant judgments through which the Court has set the enforcement criteria of the margin of appreciation; and the main theories in legal academic literature, in order to better understand how the approach followed in the case-law on the Islamic veil draws away from both the previous jurisprudence of the Court and the scholars’ contributions and comments on the subject. … Read the rest of this entry »

An article in today’s Daily Telegraph raises important issues relating to the retention of the DNA of innocent persons by the police in both the UK and Ireland. It also raises profound questions as to the effect of decisions of the European Court of Human Rights in domestic law.

According to the Telegraph:

The [UK's] Coalition Government has pledged to dramatically reduce the time period that police can retain samples of people who were not charged or convicted of offences. It follows a ruling by the European Court of Human Rights in 2008 that a blanket policy of retaining such profiles indefinitely was illegal.

However, no new laws have yet been introduced and the Supreme Court will today hear a test case that such samples should be deleted now. If the country’s top court agrees it could result in police forces having to remove the samples immediately regardless of when new legislation is introduced.

The case is R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) (UKSC 2010/0186) Read the rest of this entry »

“Even the judges know who Naomi Campbell is”. At least Baroness Hale of Richmond does, since this is how she began her speech in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004), in which she was a member of the majority which held that aspects of the Mirror’s coverage of Naomi Campbell’s fight against narcotics addiction – in particular, the publication of photographs which did not advance the public interest in the story – infringed her privacy. Today, in MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights (ECHR) held that this holding did not infringe Article 10 of the European Convention on Human Rights. Campbell was awarded £3,500 for that invasion of privacy. For the appeal to the House of Lords, she had retained solicitors and counsel pursuant to a conditional fee agreement (”CFA”) which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. For the appeal to the House of Lords, legal fees were £288,468; and the success fees were £279,981.35; so the total fees were £594,470. Adding in the fees at first instance and before the Court of Appeal, Campbell’s costs amounted to a total of £1,086,295.47. In Campbell v MGN [2005] UKHL 61 (20 October 2005), the House of Lords approved an award of costs to her in this amount. In today’s judgment, (which I have noted here), the ECHR held that addition of the success fee infringed Article 10. As the Guardian’s headline put it: the European court deals [a] blow to no win, no fee deals in Naomi Campbell case.

This is a very signifcant decision for several reasons. Read the rest of this entry »

Robert A Kahn (University of St Thomas School of Law, Minnesota) A Margin of Appreciation for Muslims? Viewing the Defamation of Religions Debate Through Otto-Preminger-Institut v Austria (abstract; via SSRN):

Critics of the global standard outlawing defamation of religions often view the proposal as an effort by radical Muslims to deprive the liberal West of long-held liberties. What if however, the supporters of the proposal are surprisingly moderate in what they ask for? What if the liberal West itself has a history of banning blasphemy? To explore these questions, this essay looks at the defamation of religions debate from the vantage point of Otto-Preminger-Institut v Austria 13470/87, (1995) 19 EHRR 34, [1994] ECHR 26 (20 September 1994) in which the European Court for Human Rights upheld an Austrian prosecution of a film potentially offensive to Catholics. The Otto-Preminger case unsettles the critics’ arguments in two ways. First, the majority suggests one could ban some blasphemy without stifling religions debate. Second, the dissent, while opposing the prosecution, would have allowed Austria to ban violent and abusive attacks on religious groups. This suggests a compromise where defamation of religions proposal is read as calling for a ban on the incitement of religious hatred. Finally, the Otto-Preminger case shows how to conduct a civil discussion about if and when to ban religiously offensive speech. There is a lesson for defamation of religion critics here as well.

See also Sejal Parmar “The Challenge of ‘Defamation of Religions’ to Freedom of Expression and the International Human Rights System” [2009] 3 EHRLR 353, noted here. Other relevant ECHR cases include:

• Müller v Switzerland 10737/84, (1991) 13 EHRR 212, [1988] ECHR 5 (24 May 1988);
• Wingrove v UK 17419/90, (1997) 24 EHRR 1, [1996] ECHR 60 (25 November 1996);
• Gündüz v Turkey 35071/97, [2003] ECHR 652 (4 December 2003);
• IA v Turkey 42571/98 [2005] ECHR 590 (13 September 2005);
• Giniewski v France 64016/00, [2006] ECHR 82 (31 January 2006);
• Klein v Slovakia 72208/01, [2006] ECHR 909 (31 October 2006).

If I have missed any, please let me know. Thanks!

Dr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s another hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while. I’ll begin and end with some stories of censorship, and along the way I’ll mention open wifi, international perceptions of Ireland, typography, mobile phones, broadcasting, and the future of our universities.

First, as a supplement to my post on the Lady Chatterley’s Lover trials, Alan Travis in the Guardian argues that the failure of the Chatterley prosecution secured the liberty of literature in Britain over the past 50 years. By way of a similar supplement to my post on the decision of the European Court of Human Rights in Akdas v Turkey 41056/04 (15 February 2010) that a Turkish ban on Apollinaire’s Les Onze Mille Verges infringed Article 10 of the European Convention on Human Rights, the Guardian reports that Turkey is at it again: publisher Irfan Sanci is being prosecuted – under the same Turkish provisions that were found wanting in Akdas – for publishing a translation of another Apollinaire noverl, Les exploits d’un jeune Don Juan (The Exploits of a Young Don Juan). To add insult to this injury, the prosecution comes in the week before Sanci is to be bestowed with a special award by the Geneva-based International Publishers Association. Read the rest of this entry »

In Sanoma Uitgevers BV v The Netherlands Application no 38224/03 (14 September 2010) (Inforrm’s Blog | Index on Censorship Free Speech Blog | JuraBlogs), the Grand Chamber of the European Court of Human Rights (ECHR) has held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. This is an important standard, and the actions of the Dutch authorities failed to meet it. An order to disclose journalistic material was made by a public prosecutor, whom the Court considered to be a party rather than impartial, so that there was no independent assessment as to whether the interest of a criminal investigation overrode the public interest in the protection of journalistic sources. As a consequence, the Court unanimously held that there was a violation of Article 10 of the European Convention on Human Rights.

The case concerned illegal car races being investigated by the Dutch magazine Autoweek, published by Sanoma Uitgevers BV. The journalists took photographs and made notes, but edited the published photographs to guarantee the anonymity of the participants in the race. The participants in the illegal race were suspects in other serious crimes, and the public prosecutor took the view that the need to identify them justified a summons ordering the production of the CD-ROM on which the original photographs were stored. The Third Section of the ECHR held that this did not infringe Art 10 (a decision which I criticised at the time). On appeal, the Grand Chamber has now made amende honorable.
Read the rest of this entry »

Two recent cases in the European Court of Human Rights demonstrate that there are still large gaps in the protection of freedom of expression in Turkey.

Terrorist speech
In Gözel and Özer v Turkey (43453/04 and 31098/05; 6 July 2010 | judgment (in French); press release (in English)), a Turkish magazine published an article that contained a statement by the central committee of the banned Marxist-Leninist/Turkish Communist Party. Another published an article about the founder of the Marxist movement in Turkey which included a statement by eight people who were in custody for belonging to illegal organisations. The editors of both magazines were convicted of pubishing statements of illegal armed organisations.

The ECHR noted that the editors had been convicted for publishing texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content, and held that to condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. It therefore concluded that since the opinions expressed did not constitute hate speech or stir up violence, the Respondent was not entitled to rely on national security to restrict the public’s right to receive information, and that Article 10 had therefore been breached.

In Ireland, the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries to the airwaves, and this extended to preventing an election broadcast by a candidate in a party associated with a paramilitary organisation. That association, effectively the mere identity of the candidate, was sufficient to allow the ban to be upheld. O’Higgins CJ held that the use of the media for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. This must now be questionable in the light of Gözel and Özer.

Academic Freedom
In Sapan v Turkey (44102/04; 6 July 2010 | judgment (in French); press release (in English) | h/t Strasbourg Observers), the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was based upon his doctoral thesis, and it focussed in part on a well-know pop singer. The Turkish courts held that, since the book addressed subjects related to the singer’s personal life rather than his public persona, it had infringed his personality rights. An interim order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed.

The ECHR emphasised the importance of academic freedom, and it considered that the book was a serious academic analysis of the social phenomenon of stardom which could not be compared with the tabloid press or gossip columns. It therefore held that there were no relevant or sufficient and reasons to justify the seizure of the book, and that Article 10 had therefore been breached.

In an earlier post, I placed the terms of section 14(1) of the Universities Act, 1997 (also here) in the context of US and ECHR decisions on academic freedom, in particular the decision of the ECHR in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009). This is a very significant judgment in the development of this important right. In particular, it re-inforces the argument that, since academic freedom is protected under the ECHR as an aspect of Article 10, it should by analogy be protected under the Irish Constitution as an aspect of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3.

When I was growing up, I read a children’s book called The Arabian Nights, an innocent version of the Islamic classic One Thousand and One Nights. Perhaps surprisingly, a group of Egyptian lawyers has recently called for a ban of a newly-released version of the Nights, on the grounds that it is “obscene” and could lead people to “vice and sin”. At the same time, another Egyptian group has called for a ban on the controversial novel Azazeel (Beelzebub) by Youssef Ziedan, which won the 2009 International Prize for Arabic Fiction. And, irony of ironies, just in time for Bloomsday, a manga comic book version of James Joyce’s novel Ulysses had almost been banned from the Apple App Store for obscene images, but Apple then relented, and reversed its earlier decision to remove panels containing nude images, though it still continues to reject less famous apps.

These examples of censorship of literature on the grounds of obscenity are simply the latest instances of a long and dishonourable tradition. In an earlier post, I considered whether Lady Chatterley’s Lover is obscene. In Akdas v Turkey 41056/04 (15 February 2010) (judgment in French; press release in English), the European Court of Human Rights was faced with a similar question earlier this year, when it had to consider whether a Turkish ban on Guillaume Apollinaire’s Les Onze Mille Verges (or, The Eleven Thousand Rods) was consistent with Article 10 of the European Convention on Human Rights. It held that the ban infringed Article 10 (see see ECHR Blog | Guardian | Inforrm | Strasbourg Observers). However, the reasoning by which it reached this eminently sensible conclusion could have profound consequences for states attempting to rely on “the protection of morals” in Article 10(2) to justify restrictions on speech otherwise protected by Article 10(1).

In Handyside v UK 5493/72, [1976] ECHR 5, (1976) 1 EHRR 737 (7 December 1976), the first case on Article 10, the Court took a broad view of what was protected by Article 10(1), but when it came to whether a restiction could be said, in terms of Article 10(2) to be “necessary … for the protection of morals”, the Court held that there is no “uniform European conception of morals” (para 48), with the result that States were afforded quite a generous margain of appreciation to determine in the first instance whether a restriction was indeed necessary for the protection of morals. Subsequent cases have taken a similar approach, but Akdas v Turkey marks a signficant departure from this model.

Paying due obeisance to the Handyside approach, the Court nevertheless tempered it by observing that more than a century had passed since the first publication of the work in France, that it had thereafter been published in numerous countries in various languages, and it that had been inducted into the prestigious Bibliothèque de la Pléiade, now an imprint of Gallimard, a dozen years before being seized in Turkey. As a consequence, the Court held that reliance upon the margin of appreciation would not avail Turkey in this case (in Inforrm’s Blog translation):

[30] … the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage.

This concept of the European cultural heritage has the potential to act as a signficant check upon over-reliance on the morals exceptoin in Article 10(2). It is certainly a long way from the Handyside assertion that there is no uniform European conception of morals. As Maris Burbergs on Strasbourg Observers points out:

the Court states that the acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need.

Antoine Buyse on ECHR Blog goes further:

Thus, apparently, what has become part of the “canon of art” can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe’s common heritage!

Similarly, Inforrm’s Blog says that this conclusion has wide ranging implications:

Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later. When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described. The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising. The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection. The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.

One way to test this rather fluid conception of the European literary heritage is to apply it to not just to European books like The Eleven Thousand Rods, Ulysses or Lady Chatterly’s Lover, but to non-European classics such as The One Thousand and One Nights or to important recent publications like Azazeel. If there is no substantive or qualitative difference between them, then the pressure will be on the Court to expand its notion of the European literary heritage, and to narrow the margin of appreciation afforded to member states when the seek to rely on the morals exception. This would be no bad thing.