Issue 37 June 2007 - Human Rights Stop Press

With the recent Court of Session vacation, there have only been a few reported decisions. From the case digest it will be seen that the issue of the right of prisoners to vote has, however, been much litigated over the last few months. It must be doubted whether the last word has been pronounced on that subject yet by our courts.

The Strasbourg Court has as always been busy and the following are a selection of some of the more interesting cases to have emerged of late. A very recent and very important decision in the field of asylum law is Gebremedhin v France (application no. 25389/05, April 26, 2007). The applicant had been displaced from Ethiopia to Eritrea. He worked as a reporter and photographer for an independent newspaper. The applicant, who was arrested and interrogated about the activities of another journalist, claimed to have been tortured. He managed to abscond and he claimed asylum in France. The authorities rejected his claim. Directions for his removal were set. An urgent judicial appeal by the applicant against that decision was dismissed. The applicant lodged an application with the Strasbourg Court which indicated to the French Government, on July 15, 2005, pursuant to r.39 of the Rules of Court, that it was desirable not to remove him to Eritrea prior to the forthcoming meeting of the appropriate Chamber. He was later granted refugee status.

The applicant complained, under Art. 13 of the Convention taken in conjunction with Art.3, that under French law there was no remedy with suspensive effect against decisions refusing leave to enter or directing removal. The Court observed that, under French law, a decision to refuse entry to the country acted as a bar to lodging an application for asylum. Moreover, such a decision was enforceable, with the result that the individual concerned could be immediately returned to the country he or she claimed to have fled. In the instant case, following the application of r.39 of the Rules of Court, the applicant had been granted leave to enter France and had hence been able to lodge an application for asylum with OFPRA, which granted him refugee status in November 2005. As the applicant had been granted asylum status, he could no longer claim the status of victim of an alleged violation of Art.3 as he was not to be returned. However, a question arose in the present case as to the applicability of Art.13 taken in conjunction with Art.3 of the Convention.

Under French law, in order to lodge an application for asylum, foreign nationals had to be present on French territory. Consequently, they could not submit an application on arrival at the border unless they had previously been granted leave to enter. If they did not have the necessary documents for that purpose, they had to apply for leave to enter the country on grounds of asylum; they were then held in a "waiting area" for the time needed to examine whether or not their planned asylum application was "manifestly ill-founded". If the authorities deemed the application to be "manifestly ill-founded", they rejected the request for leave to enter the country, and the individual concerned was automatically liable to be removed without having had the opportunity to lodge an asylum application with the asylum authority.

The individuals concerned by this procedure, known as "application for asylum at the frontier", could appeal against the ministerial decision refusing them leave to enter, but could also apply to the urgent applications judge. While the latter procedure appeared on the face of it to offer solid guarantees, it did not have an automatic suspensive effect, with the result that the person concerned could, quite lawfully, be deported before the urgent applications judge had given a decision. Given the importance which the Court attached to Art.3 and the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised, it was a requirement of Art.13 that the persons concerned should have access to a remedy with automatic suspensive effect. As the applicant, while in the "waiting area", had not had access to such a remedy, he had been deprived of an "effective remedy" in respect of his complaint under Art.3.

The Court therefore held that there had been a violation of Art.13 taken in conjunction with Art.3.

The Court considered the extent to which the law could interfere with the freedom of expression of politicians and journalists where the aim of the interference was said to be the protection of the reputation of a government body in Lombardo v Malta (application no. 7333/06, April 24, 2007). The Court held that there had been a violation of Art. 10. Two of the applicants were councillors elected to a Local Council. One was the editor of a local newspaper. A dispute arose between the government and the Council about a road project. The matter was brought before the domestic courts and gave rise to discussion in the Local Council and the local press. On May 24, 2001, during a Local Council meeting, the applicants tabled a motion calling for a public meeting to be held about the project. The motion was rejected. The applicants published an article in the newspaper referring to the disagreement about the project and stating that the Local Council "did not consult the public and is ignoring public opinion on the matter".

The Council sued the applicants for libel and defamation. The applicants argued that the article amounted to fair comment in view of the rejection of their motion to hold a public meeting.  In their view, the Council's efforts to examine the issues relating to the dispute had not involved public consultation. The court found the article libellous and defamatory on the ground that the allegations of fact by the first three applicants had not been proved. On the contrary, it found that public consultation had taken place from the outset. The applicants were ordered to pay damages of EUR 4,800 reduced to EUR 1,440 on appeal. The higher courts rejected the applicants' constitutional complaint, based on the right to freedom of expression.

The Strasbourg Court considered that the legitimate aim of protecting the reputation or rights of others could, in exceptional circumstances, justify a measure banning statements which had criticised the acts or omissions of an elected body such as a council. The Court recalled that, while freedom of expression was important for everyone, it was especially so for elected representatives, who drew attention to the electorate's preoccupations and defended public interests. Accordingly, any interference with their freedom of expression needed to be examined with great care by the Court.

The Court reiterated that the duty of the press was to provide accurate and reliable information on all matters of public interest, whilst not overstepping certain limits regarding the reputation and rights of others. The limits of permissible criticism were wider for politicians than for a private citizen and were wider still with regard to a government. It followed that an elected political body such as a local council should also be expected to display a higher degree of tolerance to criticism. There was little scope for restricting political speech or debate on questions of public interest. It followed then that the subject matter of the applicants' article, which was part of a political debate of general interest to the local community, had entitled them to bring it to public attention through the press. Political debate did not require unanimous agreement as to the interpretation of particular words.

The Court considered that the rejection of the applicants' motion provided a sufficient factual basis for the allegation that the Council had not consulted the public so as to allow that allegation to be construed as a value judgment. Even assuming it had not been a value judgment, the interpretation given by the applicants was not manifestly unreasonable. The allegation concerning public opinion having been ignored was clearly a value judgment. The Court recalled that the truth of value judgments was not susceptible of proof, and nothing showed that those value judgments had not been made in good faith. In any case, the Court observed that the distinction between statement of fact and value judgment was less important where the statements had been made in the course of a lively political debate. The Court also took into consideration that the damages involved represented a sanction likely to discourage the applicants from criticising the Local Council in the future.

The proceedings having been civil rather than criminal in nature and the final award having been relatively low should not detract from the fact that the Maltese courts had not put forward "relevant and sufficient" reasons to justify the interference. It followed that the domestic courts had overstepped the narrow margin of appreciation afforded to them to restrict discussion on matters of public interest and concluded that the interference had been disproportionate to the aim pursued and had not been "necessary in a democratic society". There had, therefore, been a violation of Art.10.

A reminder that a breach of domestic law might breach the ECHR and result in an obligation to compensate arose in Berecova v Slovakia (application no. 74400/01, April 24, 2007) in which there was a violation of Art.8. The applicant,

Adriana Berecova, is a Slovakian. Following her divorce from her husband in 1995, she was granted custody of their two children. In April 2000, an injunction, stating in particular, that she had grossly neglected her children's education and that she was suspected of ill-treatment, ordered that they be placed temporarily in the father's custody. In May 2000, the father being unable to take care of them, the children were ordered to be placed in care. Relying on Art,8, she complained about the placement of her children in institutional care. The relevant provisions of the legislation then in force prevented the applicant from having the decisions in issue given by administrative authorities, reviewed by a court. That was contrary to Art.4l (4) of the Constitution which permits the separation of under-age children from their parents against the latter's will only pursuant to a judicial decision, and it was incompatible with Art.152(4) of the Constitution under which the interpretation and application of, inter alia, ordinary laws have to be in accordance with the Constitution. The interference in issue was thus contrary to the Constitution, which is the fundamental source of law in Slovakia to which the other legal rules have to conform. As a result, that interference was not "in accordance with the law." Concluding that the interference with Ms Berecova's private and family life had not been "in accordance with the law" in that there had been breaches of national law concerning the decisions made in relation to the children, the Court held, unanimously, that there had been a violation of Art, 8. Ms Berecova was awarded EUR 2,500 in respect of non-pecuniary damage and EUR 1,500 for costs and expenses.

Fairness of criminal proceedings in cases involving allegations of sexual abuse by children were considered in B v Finland (application no. 17122/02, April 24, 2007) and W v Finland (no. 14151/02 April 24, 2007). The applicants are two Finnish nationals. B was convicted and sentenced to seven years imprisonment for sexually abusing her two daughters-K, born in October 1986, and J, born in October 1990-between 1992 and 1996. W was convicted and sentenced to two years and three months imprisonment for sexually abusing four children during 2000.

Both applicants were convicted on the basis of the victims' video-taped pre-trial statements. Relying on Arts 6(1) and 3(d) the applicants complained about the unfairness of proceedings against them, namely that they had not been given the opportunity to put questions to the witnesses against them. In the case of B, she had been invited to put questions during the pre-trial investigation, but, not having realised it would be the only opportunity, had turned it down. B also complained that her request for K, who had retracted her allegations during a visit to her in prison, to be heard before the Court of Appeal had been refused. W also complained that the police officer conducting the pre-trial investigation had put leading questions to two of the children.

The Court found that there had been nothing to indicate that the rights of the defence had not been respected in B's conviction by the District Court. It further found that it had been within the Court of Appeal's discretion to decide whether fresh evidence from K had been relevant and admissible. It therefore held, unanimously, that in the case of B there had been no violation of Arts 6(1) and 3(d).

In the case of W the Court found that neither the applicant nor his counsel had, at any point, been given the opportunity to have questions put to the children, and that putting such restrictions on the rights of defence could not be considered worthy of a fair trial. The Court therefore held, by six votes to one, that there had been a violation of Arts 6(1) and 3(d) and awarded the applicant EUR 3,000 in respect of non-pecuniary damage and EUR 8,062 for costs and expenses.