Issue 45 May 2009 - Human Rights Stop Press: Pensions, Italy's TV licences, Defamation in Norway, Lithuanian informants
With the recent court vacation there has been a lull in activity in the higher Scottish courts. As always the Strasbourg jurisprudence marches on. In this survey of recent interesting cases there is a pending challenge to the UK state retirement pensions system by UK citizens who have lived part of their lives overseas; a challenge to the TV licence fee in Italy; in Norway a breach of art.8 arose where a man had defamatory statements made in the media linking him to serious crimes but the Norwegian courts had not given him sufficient redress; and finally from Lithuania, a breach of the Convention arose when a former soviet era informant was publicly denounced by a government commission with the ensuing result that he could not secure work any more.
On April 21, 2009 the Grand Chamber of the European Court of Human Rights agreed to consider further Carson v United Kingdom (application no.42184/05). The case had been considered and dismissed by a Chamber of the Court. Here the applicants are 13 British nationals. The applicants spent most of their working lives in the United Kingdom, paying National Insurance Contributions in full, before emigrating or returning to South Africa, Australia or Canada. The case concerned the applicants' complaint about the UK authorities' refusal to up-rate their pensions in line with inflation.
The applicants alleged, in particular, that the UK authorities' refusal to up-rate their pensions in line with inflation was discriminatory and that some of them had to choose between surrendering a large part of their pension entitlement or living far away from their families. They relied on art.8, art.14 and art. 1 of Protocol no. 1 to the Convention.
In 2002, Ms Carson brought proceedings by way of judicial review to challenge the failure to index-link her pension. She claimed that she had been the victim of discrimination, as British pensioners were treated differently depending on their country of residence. In particular, despite having spent the same amount of time working in the United Kingdom, having made the same contributions towards the National Insurance Fund and having the same need for a reasonable standard of living in her old age as British pensioners who were living in the United Kingdom or in other countries where up-rating was available through reciprocal agreements, her basic State pension was frozen at the rate payable on the date she left the United Kingdom. Her application for judicial review was dismissed on appeal before the House of Lords in R v Secretary of State for Work and Pensions, ex parte Carson and Reynolds [2005] UKHL 37.
In the House of Lord's judgment all but one of the judges who examined Ms Carson's complaint held that she was not in an analogous, or relevantly similar, situation to a pensioner of the same age and contribution record living in the United Kingdom or in a country where up-rating was available through a reciprocal bilateral agreement. Social security benefits, including the State pension, were part of an intricate and interlocking system of social welfare and taxation which existed to ensure certain minimum standards of living for those in the United Kingdom. Contributions to the National Insurance Fund couldnot be equated to contributions to a private pension scheme, because the money was used, together with money provided from general taxation, to finance a range of different benefits and allowances. Quite different economic conditions applied in other countries, e.g. in South Africa, where Ms Carson lived; although there was virtually no social security, the cost of living was much lower, and the value of the rand had dropped in recent years compared to sterling.
The domestic courts further held that Ms Carson and those in her position had chosen to live in societies, or more pointedly economies, outside the United Kingdom; to accept her arguments would be to lead to judicial interference in the political decision as to the redeployment of public funds. Ms Carson receives a basic State pension of £67.50 per week. It has been frozen at that rate since 2000. Had that basic pension been up-rated in line with inflation, it would now be worth £82.05 per week. Ms Carson, now retired, is almost entirely dependent on her British pension to support her.
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On April 20, 2009 the European Court declared inadmissible the application in the case of Faccio v Italy (application no.33j04) concerning the sealing of the applicant's television set in a bag because he had not paid his licence fee. On December 20, 1999 he filed a request with the "subscriptions bureau" to terminate his subscription to the public television service.
On August 29, 2003 the tax police sealed his television set in a nylon bag so that it could not be used. Relying on art. 10 and art.8, Mr Faccio complained before the Court about a violation of his right to receive information and of his right to respect for his private and family life. He alleged, among other things, that the act of making his television set unusable had been a disproportionate measure as it also prevented him from watching private channels. He further relied on art.1 of Protocol no. I. The Court noted that it was not in dispute that the sealing of the television set had constituted interference with the applicant's right to receive information and with his right to respect for his property and for his private life. It further found that the measure, taken under art. 10 of royal legislative decree, had pursued a legitimate aim: to dissuade individuals from failing to pay a tax, or in other words to dissuade them from terminating their subscriptions to the public television service.
The licence fee represented a tax that is used for the financing of the public broadcasting service. In the Court's view, as shown by the wording of art.1 of royal legislative decree, regardless of whether or not Mr Faccio wished to watch programmes on public channels, the mere possession of a television set obliged him to pay the tax in question. Moreover, a system whereby viewers could watch only private channels without paying the licence fee, assuming that this was technically feasible, would amount to depriving the tax of its very nature, since it was a contribution to a community service and not the price paid by an individual in return for receiving a particular channel.
In view of the foregoing considerations and the reasonable amount of the tax (which amounted to €107.50 for 2009), the Court concluded that the measure of sealing the applicant's television set in a bag was proportionate to the aim pursued by the Italian authorities. It thus declared the application manifestly ill-founded.
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In A v Norway (application no.28070j06) decided on April 9, 2009, the Court held unanimously that there had been a violation of art.8 on account of two defamatory newspaper publications, concerning the applicant's possible involvement in the murder of two young girls, having damaged his reputation and honour.
The case concerned A’s complaint about the unfavourable outcome of a defamation suit he brought against a newspaper following their publication of two articles concerning the preliminary investigation into the murder (and in the case of the second article also rape) of two young girls in 2000 and which implicated him.
The applicant, 42 years' old at the time, had served prison sentences for murder and assault with a knife. He had been released from prison about a year before two girls, of eight and 10 respectively, were raped and stabbed to death in the area which he visited regularly after his release. He was questioned about the murders as a possible witness but was released after 10 hours; two other men were subsequently convicted of the crimes.
The police's interest in A attracted considerable media attention. Several national newspapers reported on his interrogation and criminal past, but did not disclose his identity. However, the main district newspaper on the southern coast of Norway published articles on the case on two consecutive days in May 2000. These articles disclosed details of the applicant's past criminal convictions and stated that he had allegedly been seen by witnesses in the very same area and at the same time as the girls were killed. The articles also contained other sufficient elements to identify him, namely an interview with him insisting on his innocence, details of his place of work, residence and neighbourhood, and a large picture of him albeit from a distance and somewhat blurred. Also, in May 2000, a television station reported in a news broadcast that members of the press had followed a 42-year-old murderer in the city where the two girls were raped and stabbed. It also showed an interview with the applicant on his way to the area of the murders.
A brought defamation proceedings against the newspaper and TV station. The domestic courts found in his favour and awarded him compensation as regards the TV report. In respect of the newspaper articles, however, the domestic courts agreed that the publications had been defamatory in as much as they were capable of giving the ordinary reader the impression that the applicant was regarded as the most probable perpetrator of the murders, yet concluded that, on balance, the newspaper had been right to publish the articles, as it had acted in the interest of the general public, who had the right to be informed of the developments in the investigation and pursuit of the perpetrators.
Relying on art.6(2) and art.8, the applicant complained that the domestic courts' findings which justified the newspaper publishing defamatory material about him had affected his right to be presumed innocent until proven otherwise as well as his private life.
The European Court first noted the domestic courts' ruling that the published articles had been defamatory in nature as they had given the impression that the applicant had been a prime suspect in the murder case of the two girls. Although the applicant had not been mentioned by name, the photographs and details of his places of work and residence had made it possible for persons who already knew him to identify him as a possible suspect of aggravated crimes of a particularly reprehensible nature.
The Court further found that the news report had wrongly conveyed the idea that there had been facts pointing to the applicant as a suspect. While it had been undisputed that the press had the right to deliver information to the public, and the public had the right to receive such information, these considerations did not justify the defamatory allegations against A and the consequent harm done to him.
Indeed, the applicant had been persecuted by journalists who wished to obtain his pictures and interviews during a period in his life when he had been undergoing rehabilitation and reintegration into society. As a result of the journalistic reports, he had found himself unable to continue his work, had to leave his home and had been driven into social exclusion. The Court concluded that the publications in question had gravely damaged A’s reputation and honour and had been especially harmful to his moral and psychological integrity and to his private life, in violation of art.8.
The Court dismissed A’s allegations under art.6(2) as it found that article not applicable to the matters complained of, given in particular that no public authority had charged A with a criminal offence.
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In Zickus v Lithuania (application no.26652/02), the European Court held by four votes to three that there had been a violation of art.14 in conjunction with art.8 of the European Convention on Human Rights, on account of Mr Zickus being prevented from seeking employment in the private sector because he had collaborated with the special security services ("KGB") during the communist era.
The case concerned his complaint that, having been publicly denounced by a special governmental commission, responsible under a domestic law introduced in January 2000 for assessing the applicant as a former secret KGB collaborator, he lost his job and is now prevented from working in the private sector.
In September 2000, activities of those who had collaborated with the KGB, found that Mr Zickus had helped the KGB during the communist era. That information was published in the "Official Gazette" in July 2001. As a result, the same month, he was dismissed from his post in human resources at the Ministry of the Interior, the reason given being the published information in respect of his past activities. He brought proceedings before the administrative courts seeking to have the conclusions of the governmental commission as regards his KGB involvement annulled, but his claim was dismissed. Following those domestic court decisions, Mr Zickus also alleges that he was disbarred from practising as a lawyer.
In finding a violation the Court recalled that the requirement of loyalty to the State was an inherent condition of being employed as a civil servant by the State and emphasised that State-imposed restrictions on one's opportunities to find employment in the private sector, because of lack of loyalty to the State, could not be justified under the Convention in the same manner as restrictions in the public service. In particular, the domestic law applied in Mr Zickus's case had had a number of drawbacks: it had not differentiated between different levels of former involvement with the KGB, and had come into force at least a decade after he had ceased collaborating with the KGB. In addition, there had been nothing in the case file to indicate that Mr Zickus would have posed an ongoing danger to national security had he been employed in some areas of the private sector after 2000. Finally, the Lithuanian authorities had themselves recognised Mr Zickus's loyalty to the country by bestowing State awards upon him.