Issue 49 June 2010 - Human Rights Stop Press: Media Freedoms, Tunisia, Prisoner Voting

The European Court has again been busy. It has re-ex­amined the approach to be taken in expulsion cases under art.3 and has set out in a clear and careful analy­sis how an assessment of diplomatic guarantees of­fered to prevent a risk of a breach of art.3 arising is to be approached.

It has revisited some important areas of work in­cluding the scope of journalistic and political freedom in cases. The case brought against Azerbaijan is a par­ticularly strong re-statement of the extent to which the ECHR will protect responsible (and highly critical) journalism. The French case involving political speech by a local councillor is also a re-affirmation of the mar­gin afforded to comment on matters of controversy made by those who hold elected office.

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The Court has repeated that restrictions on the eligibility of prisoners to vote have to be narrowly drawn and supported by adequate reasons.

In Trabelsi v Italy (App. No.50163/08), April 13, 2010 the applicant was a Tunisian national who had been living in Italy since 1986 with his wife, also a Tunisian national, and his three young children, born in Italy. In 2003 he was arrested on suspicion of criminal conspiracy linked to fundamentalist Islamist groups and of aiding and abetting illegal immigration, and was placed in pre-trial detention. In 2006 the Cre­mona Assize Court sentenced him to 10 years and 6 months' imprisonment and ordered his deportation once his sentence had been served. The Brescia As­size Court of Appeal acquitted him of the charge of aiding and abetting illegal immigration and re­duced his sentence to seven years' imprisonment. That decision was upheld by the Court of Cassation and became final. In November 2008 the applicant was granted a remission of some of his sentence. Meanwhile, the Tunisian courts had also sentenced him, in absentia, to 10 years' imprisonment for mem­bership of a terrorist organisation in peacetime.

At his request the European Court, applying r.39 of the Rules of Court, indicated to the Italian au­thorities that the applicant should not be deported until further notice. The applicant was nevertheless deported to Tunisia. The previous day, the Italian au­thorities had sought diplomatic assurances from the Tunisian authorities. The Advocate-General at the Directorate-General of Judicial Services in Tunisia assured the Italian authorities that the applicant's human dignity would be respected, that he would not be subjected to torture, inhuman or degrading treatment or arbitrary detention, that he would re­ceive the appropriate medical care and that he would be able to receive visits from his lawyer and members of his family. Following an enquiry from the Italian authorities, the Tunisian Ministry of Foreign Affairs indicated that the applicant was being detained in Saouaf Prison and was receiving visits from his fam­ily and medical treatment.

Relying on arts.3 and 34 and also on art.8 of the Convention he complained of his expulsion and its consequences. The European Court held that ex­pulsion by a Contracting State could engage the re­sponsibility of that State under the Convention, where substantial grounds had been shown for be­lieving that the person in question, if expelled, would face a real risk of being subjected to treatment con­trary to art.3 in the receiving country. In these cir­cumstances, art.3 dictated that the person concerned should not be expelled to that country.

Basing its findings on the conclusions it had reached in a previous case (Saadi v Italy (App. No.37201/06), judgment of February 28, 2008, Grand Chamber), which were confirmed by Amnesty International's 2008 report on Tunisia, the Court considered that substantial grounds had been shown for believing that the applicant faced a real risk of being subjected to treatment contrary to art.3 in Tunisia. However, it remained for the Court to first ascertain whether the diplomatic assurances provided by the Tunisian authorities were sufficient to eliminate that risk and, secondly, whether the in­formation concerning the situation of the applicant on deportation confirmed the view of the Italian au­thorities.

On the first point the Court examined whether, looking beyond the assurances received and the leg­islation in force, their actual application in the case was such as to protect him against the risk of pro­hibited treatment. It noted, first of all, that it had not been established that the Advocate-General at the Directorate-General of Judicial Services had had the power to give assurances on behalf of the Tunisian State. The Court went on to observe that reliable in­ternational sources indicated that allegations of ill-treatment were not investigated by the competent authorities in Tunisia and that the Tunisian authori­ties were reluctant to cooperate with independent human rights organisations. Lastly, the Court noted that neither his representative before the Court nor the Italian ambassador in Tunisia had been able to visit the applicant in prison, check on his situation and hear any complaints he might have had. Ac­cordingly, the Court could not share the view of the Italian Government that the assurances given offered the applicant effective protection against the serious risk of being subjected to treatment contrary to art.3.

On the second point the Court reiterated that the existence of a risk of ill-treatment had to be as­sessed primarily with reference to those facts which were known, or ought to have been known to the State in question at the time of the expulsion. The Court was not precluded, however, from having re­gard to information which came to light subse­quently and which might be of value in confirming or refuting the appreciation made by the State con­cerned of the well-foundedness or otherwise of an applicant's fears. The Court noted that the Tunisian Ministry of Foreign Affairs had stated that the ap­plicant received regular visits from his family and would be kept under medical supervision. However, although these assertions came directly from the Tunisian Foreign Affairs Ministry, they were not cor­roborated by medical reports and were not capable of demonstrating that the applicant had not been subjected to treatment contrary to art.3. In that con­nection the Court could only reiterate its observa­tions as to the inability of the applicant's lawyer and the Italian ambassador to visit the applicant in prison and to verify whether his physical integrity and human dignity were indeed being respected.

The Court therefore held that the carrying-out of the applicant's expulsion to Tunisia had been in breach of art.3 of the Convention.

In relation to his complaint concerning the fail­ure to comply with the interim measure indicated to Italy under art.34 in cases such as the present one where a risk of irreparable damage was plausibly as­serted, the object of the interim measure indicated by the Court was to maintain the status quo pending the Court's determination of the case; the interim measure therefore went to the substance of the ap­plication. Furthermore, the Court had already ruled that failure to comply with interim measures was to be regarded as preventing the Court from effectively examining the applicant's complaint, as impeding the effective exercise of his or her right and, accordingly, as a violation of art.34.

The present case was no exception. Italy had de­ported the applicant to Tunisia in the knowledge that the interim measure indicated under r.39 was still in force and without even having obtained beforehand the diplomatic assurances to which the Government referred in their observations. In the circumstances, the applicant had been unable to set out all the ar­guments relevant to his defence and the Court's judgment was in danger of being deprived of any useful effect. In particular, the fact that die applicant had been removed from Italian jurisdiction consti­tuted a serious impediment to the fulfilment by the Government of their obligations (arising out of arts 1 and 46 of the Convention) to safeguard the appli­cant's rights and make reparation for the conse­quences of the violations found by the Court. That situation had amounted to hindrance of the effective exercise by the applicant of his right of individual petition, which had been nullified by his expulsion.

The Court therefore held that there had been a violation of art.34. The Court held that Italy was to pay the applicant €15,000 in respect of non-pecu­niary damage and €6,000 for costs and expenses.

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In Frodl v Austria (App. No.20201/04, April 8, 2010) the Court found a violation of art.3 of Protocol No.l (the right to free elections). Here the applicant, who is currently detained in prison, was sentenced to life imprisonment for murder in 1993 and so was not included in the local electoral register. The Austrian Courts held that the relevant provisions of the National Assembly Election Act were not unconstitu­tional.

The European Court observed that the case had similarities with another case (Hirst v United Kingdom (no.2) [GC] App. No.74025/01, October 6, 2005; in which it had found a violation of art.3 of Protocol No.l on account of the disenfranchisement of a prisoner. In that case, it had set out several criteria which had to be respected by Contracting States to the Convention when imposing restrictions on pris­oners' right to vote, namely that disenfranchisement could only be envisaged for a narrowly defined group of offenders serving lengthy terms of im­prisonment, that there should be a direct link be­tween the facts on which a conviction is based and the sanction of disenfranchisement, and that such a measure should preferably be imposed by the deci­sion of a judge following judicial proceedings.

In the present case, it followed from the Austrian Government's submissions that the provisions on disenfranchisement of prisoners pursued the aims of preventing crime by punishing the conduct of convicted prisoners and of enhancing civic respon­sibility and respect for the rule of law. The Court found no reason to regard these aims in themselves as incompatible with the Convention. It further agreed with the Government that the Austrian pro­visions on disenfranchisement were more narrowly defined than the rules applicable in the case men­tioned above.

Nonetheless, the relevant provisions of that Act did not meet all the criteria the Court had set out for a measure of disenfranchisement to be in conform­ity with the Convention, namely that the decision on disenfranchisement should be taken by a judge, tak­ing into account the specific circumstances of the case, and that there must be a link between the of­fence committed and issues relating to elections and democratic institutions. These criteria served the purpose to establish disenfranchisement as an ex­ception, even for convicted prisoners. The Court concluded, by six votes to one, that there had been a violation of art.3 of Protocol No.l.

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In Fatullayev v Azerbaijan (App. No.40984/07, April 22, 2010) the Court found two violations of art. 10 and violations of art.6(l), (2) where the applicant was the founder and chief editor of the newspapers Gundelik Azerbaycan, published in the Azerbaijani language, and Realny Azerbaijan, published in the Russian language. The newspapers were widely known for often publishing articles harshly criticis­ing the Government and various public officials. He is currently serving a prison sentence. In 2007 two sets of criminal proceedings were brought against the applicant in connection with two articles pub­lished by him in Realny Azerbaijan.

The first set of criminal proceedings related to an article, published in April 2005, and to separate Internet postings appearing more than a year later on a forum of a website. The applicant had signed under the article, which he had written after his visit earlier that year to the area of Nagorno-Karabakh and other territories controlled by the Armenian mil­itary forces, but denied authorship of the internet postings. The statements made in the article and the postings differed from the commonly accepted ver­sion of the events at the town of Khojaly during the war in Nagorno-Karabakh, according to which hun­dreds of Azerbaijani civilians had been killed by the Armenian armed forces with the reported assistance of the Russian army. Four Khojaly survivors and two former soldiers involved in the Khojaly battle brought a criminal complaint against the applicant for defamation and for falsely accusing Azerbaijani soldiers of having committed an especially grave crime. The courts upheld the claims against the ap­plicant, convicted him of defamation and sentenced him to two years and six months' imprisonment.

In addition, in civil proceedings brought against the applicant before the above mentioned first set of criminal proceedings, he was ordered to publish a retraction of his statements, an apology to the refugees from Khojaly and the newspaper's readers, and to pay approximately €8,500 personally, and an­other €8,500 on behalf of his newspaper, in respect of non-pecuniary damage.

The second set of criminal proceedings related to an article entitled "The Aliyevs Go to War", pub­lished in March 2007. In it the applicant expressed the view that, in order for President Ilham Aliyev to remain in power in Azerbaijan, the Azerbaijani Gov­ernment had sought the support of the United States in exchange for Azerbaijan's support for the US "aggression" against Iran. He speculated about a possible US-Iranian war in which Azerbaijan could also become involved and provided a long and de­tailed list of strategic facilities in Azerbaijan that would be attacked by Iran if such a scenario devel­oped. He concluded that the Azerbaijani Govern­ment should have maintained neutrality in its relations with both the US and Iran and that it had not realised all the dangerous consequences of the geo-political game it was playing, e.g. the possible deaths of Azeris in both Azerbaijan and Iran. The criminal proceedings against the applicant in con­nection with this article were brought by the Min­istry of National Security in May 2007. Before the applicant was formally charged with the offence of threat of terrorism, however, the Prosecutor General made a statement to the press, noting that the article constituted a threat of terrorism. The applicant was found guilty as charged and convicted of threat of terrorism in October 2007. The total sentence im­posed on him was eight years and six months' im­prisonment. In the defence speech at the trial and in his appeals to the higher courts, the applicant com­plained that his presumption of innocence was breached as a result of the Prosecutor General's statement to the press. His complaints were sum­marily rejected.

In relation to the first criminal conviction, the Court acknowledged the very7 sensitive nature of the issues discussed in the applicant's article and that the consequences of the events in Khojaly were a source of deep national grief. Thus, it was understandable that the statements made by the applicant may have been considered shocking or disturbing by the pub­lic. However, the Court recalled that freedom of in­formation applied not only to information or ideas that were favourably received, but also to those that offended, shocked or disturbed.

In addition, it was an integral part of freedom of expression to seek historical truth. Various mat­ters related to the Khojaly events still appeared to be open to ongoing debate among historians and as such should have been a matter of general interest in modern Azerbaijani society. It was essential in a dem­ocratic society that a debate on the causes of acts of particular gravity which might amount to war crimes or crimes against humanity should have been able to take place freely Further, the press had a vital role of a "public watchdog" in a democratic society. Al­though it ought not to overstep certain bounds, in particular in respect of the reputation and rights of others, the duty of the press was to impart informa­tion and ideas on political issues and on other mat­ters of general interest.

The Court considered that the article had been written in a generally descriptive style with the aim of informing Azerbaijani readers of the realities of day-to-day life in the area in question. The public had been entitled to receive information about what was happening in the territories over which their country had lost control in the aftermath of the war. The ap­plicant had attempted to convey, in a seemingly un­biased manner, various ideas and views of both sides of the conflict. As regards the particular statements, those had not been the applicant's own views as he had merely conveyed other persons' opinions. The article had not contained any statements directly ac­cusing the Azerbaijani military or specific individu­als of committing the massacre and deliberately killing their own civilians.

As regards the internet postings, the Court ac­cepted that the applicant's authorship of those state­ments had been proved beyond reasonable doubt. It further accepted that, by making those statements without relying on any relevant factual basis, the ap­plicant might have failed to comply with the jour­nalistic duty to provide accurate and reliable information. Nevertheless, taking note of the fact that he had been convicted of defamation, the Court found that those postings had not undermined the dignity of the Khojaly victims and survivors in gen­eral and, more specifically, the four private prosecu­tors who were Khojaly refugees. It therefore held that the domestic courts had not given "relevant and sufficient" reasons for the applicant's conviction of defamation.

In addition, the Court held that the imposition of a prison sentence for a press offence would be compatible with journalists' freedom of expression only in exceptional circumstances, notably where other fundamental rights have been seriously im­paired, e.g. as in cases of hate speech or incitement to violence. As this had not been the case, there had been no justification for the imposition of a prison sentence on the applicant. There was a violation of art. 10 of the Convention in respect of the applicant's first criminal conviction.

In relation to the second criminal conviction, the article "The Aliyevs Go to War" had focused on Azerbaijan's specific role in the dynamics of inter­national politics relating to US-Iranian relations. As such, the publication had been part of a political de­bate on a matter of general and public concern. The applicant had criticised the Azerbaijani Govern­ment's foreign and domestic political moves. At the same time, a number of other media sources had also suggested during that period that, in die event of a war, Azerbaijan was likely to be involved and speculated about possible specific Azerbaijani tar­gets for Iranian attacks. The fact that the applicant had published a list of specific possible targets, in it­self, had neither increased nor decreased the chances of a hypothetical Iranian attack. The applicant, as a journalist and a private individual, had not been in a position to influence or exercise any degree of con­trol over any of the hypothetical events discussed in the article. Neither had the applicant voiced any ap­proval of any such possible attacks, or argued in favour of them. It had been his task, as a journalist, to impart information and ideas on the relevant po­litical issues and express opinions about possible fu­ture consequences of specific decisions taken by the government. Thus, the domestic courts' finding that the applicant had threatened the State with terrorist acts had been arbitrary.

The Court considered that the second criminal conviction and the severity of the penalty imposed on him had constituted a grossly disproportionate restriction of his freedom of expression. Further, the circumstances of the case had not justified the imposition of a prison sentence on him. There had accordingly been a violation of art.10 in respect of the second criminal conviction.

In relation to the complaints brought under art.6, the Court noted that the judge who had heard the criminal case had been the same judge who had pre­viously examined the civil action against the appli­cant. Both sets of proceedings, the civil and the criminal one, had concerned exactly the same al­legedly defamatory statements made by the appli­cant. The judge had been called upon to assess essentially the same or similar evidentiary material. Having decided the civil case, the judge had already reached the conclusion that the applicant's state­ments had constituted false information tarnishing the dignity of Khojaly survivors. As the applicant had been subsequently prosecuted under criminal law on defamation, doubts could have been raised as to the appearance of impartiality of the judge who had already pronounced his opinion concerning the same allegedly defamatory statements made by the applicant. Accordingly, the Court considered that the applicant's fear of the judge's lack of impartiality could be considered as objectively justified. Article 6(1) was breached.

In relation to art.6(2) the Court noted that the applicant had raised the issue of the presumption of innocence before the courts were called upon to de­termine the criminal charges against him. Thus, he should not be required to further attempt to obtain redress by lodging a separate defamation claim under criminal law or bringing a civil action for damages, contrary to what the government had submitted.

It had been the Court's consistent approach to find that the presumption of innocence was violated if a statement by a public official concerning a per­son charged with a criminal offence reflected an opinion that he was guilty before he had been proved guilty according to law. The fact that the applicant had been a well-known journalist had required the Prosecutor General to keep the public informed of the alleged offence and the ensuing criminal pro­ceedings. However, the Prosecutor General's state­ment had unequivocally declared that the applicant's article indeed contained a threat of terrorism. Those specific remarks, made without any qualification or reservation, had amounted to a declaration that the applicant had committed the criminal offence of threat of terrorism and had thus prejudged the as­sessment of the facts by the courts. That in turn had encouraged the public to believe the applicant guilty before he had been proved guilty according to law. There had accordingly been a violation of art.6(l).

The Court noted that the applicant was cur­rently serving the sentence for the press offences in respect of which it had found Azerbaijan in viola­tion of the Convention. Having considered it un­acceptable that the applicant still remained imprisoned and the urgent need to put an end to the violations of art. 10, the Court held, by six votes to one, that Azerbaijan had to release the applicant immediately. Under art.41 (just satisfaction) of the Convention, the Court held that Azerbaijan is to pay the applicant €25,000 in respect of non-pecu­niary damage and €2,822 in respect of costs and expenses.

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In Haguenauer v France (App. No.34050/05, April 22, 2010), the Court found a violation of art.10 estab­lished. The applicant was a deputy mayor of Lyons at the relevant time. In March 2002 she participated in a demonstration that took place when the Chan­cellor of Jean Moulin University of Lyons III was awarded the Legion d'Honneur. The demonstra­tors claimed that the chancellor had shown an in­dulgent attitude towards the racist and negationist positions defended by some of the university's teaching staff. One of the university lecturers shouted at the demonstrators, saying, "it's scan­dalous what you are saying. I am proud to be Jew­ish and proud to be at Lyons III". The applicant, herself of Jewish faith, replied, "you put the com­munity to shame".

The lecturer took out a summons against the applicant for insulting a civil servant. The local court found that the remarks made by the appli­cant in public had been aimed at the lecturer in his capacity as a member of the teaching staff at Jean Moulin University of Lyons III and thus as a rep­resentative of the administration. It ordered the ap­plicant to pay compensation of €3,000 and €2,500 in court costs. The Court of Cassation dismissed an appeal lodged by the applicant and ordered her to pay an additional sum of €2,500 in court costs.

On November 15, 2001 the Minister of Edu­cation had set up a commission of historians to study the issue of racism and negationism at Jean-Moulin University of Lyons III. The commission issued a 263-page report, which included the fol­lowing sentence in its conclusions: "These data have definitively transformed a university problem into a public problem, making it into an issue of general scope reaching beyond local boundaries: our report itself is an indication of that."

In her application to the European Court, the Court reiterated that an infringement of freedom of expression was not acceptable unless it was pre­scribed by law and pursued a legitimate aim, which was clearly the case here. The measure in question also had to be capable of being considered as "nec­essary in a democratic society". It was particularly with regard to the latter point that the Court would exercise its supervision in this case.

The Court reiterated first of all that civil ser­vants acting in their official capacity were subject to wider limits of acceptable criticism than ordi­nary individuals (even though it could prove nec­essary to provide civil servants with special protection from offensive verbal attacks because they had to have the confidence of the general pub­lic without being unduly perturbed).

The Court went on to say that in the present case the remarks made by the applicant related to a matter of general interest (the fight against racism and negationism) and were part of an extremely important public debate (the attitude of Jean Moulin University of Lyons III towards lecturers who had aroused controversy for the views they defended). Furthermore, there was no doubt that the applicant had made the remarks in her capacity as local councillor; they had thus been a form of political or "militant" expression. In those circum­stances the latitude available to the authorities in assessing the need to convict the applicant was par­ticularly limited. The Court reiterated the principle that there had to be possible recourse to a degree of exaggeration, or even provocation. It also noted that the remarks in question had been made orally, during a demonstration, as part of a swift exchange of words and held that the lecturer's incisive re­marks could have influenced the tone used when replying to him.

Above all, the Court found that it was of cru­cial importance to place her remarks in the context of the debate raging at the time in Lyons and at na­tional level, as could be seen from the fact that a commission of historians had been set up by the Ministry of Education to study the issue, and from that commission's report. Lastly, account also had to be taken of the severity of the penalty imposed on her. Having regard to all those factors, the Court held that there had been a violation of art.10. Under art.41 (just satisfaction), the Court held that France was to reimburse the applicant the sums she had been ordered to pay during the proceedings in question, namely, €8,000 for pecuniary damage, and also €2,000 for non-pecuniary damage and €8,300 for costs and expenses.