First decision by the European Court of Human Rights on suspicion of reverse discrimination in tax matters

 

 

Dr Samira-Asmaa Allioui, Research fellow, Centre d'études internationales et européennes, Université de Strasbourg

Photo credit : Chabe10, via Wikimedia Commons

The applicants in the European Court of Human Rights judgment in Deforrey and others v France are three French nationals who allege reverse discrimination (ie, treating issues subject to EU law more favourably than issues subject to national law) in tax matters. Relying on Article 14 (right to non-discrimination) taken in conjunction with Article 1 of Protocol No. 1 to the Convention (right to property), the applicants complain about the methods used to calculate their income tax. They denounce reverse discrimination, arguing that they would have benefited from more favorable tax treatment if the capital gains on which they were taxed had been part of transactions falling within the scope of EU Directive 2009/133/EC of 19 October 2009, which concerns the taxation of mergers of companies between different Member States.

With regard to this directive, the Court of Justice of the European Union (CJEU), consulted by the French Conseil d’Etat decided that the relevant articles of this directive must be interpreted as meaning that, in the context of a securities exchange transaction, they require that the same tax treatment be applied to the capital gain relating to the securities exchanged and placed in tax deferral, as well as to the capital gain arising from the sale of the securities received in exchange, with regard to the tax rate and the application of a tax allowance to take into account the length of time the securities were held, as that which would have been applied to the capital gain that would have been realized upon the sale of the securities existing before the exchange transaction, had it not taken place.

But what if the same transaction as regards companies in the same Member State is treated worse for tax purposes? The three applicants denounce the discriminatory nature of the methods used to calculate their income tax base, claiming they are treated less favorably than taxpayers who have carried out a securities exchange transaction governed by European Union law. They maintain that their situation is comparable to that of taxpayers who have carried out a cross-border securities exchange transaction within the European Union internal market and complain of direct discrimination based on the location of the securities exchanged during the restructuring transactions and the national origin of the securities, arguing that this difference in treatment did not pursue a legitimate aim and was devoid of objective and reasonable justification.

In the present case, the Human Rights Court considers that it has been established that the alleged difference in treatment is correlated with an identifiable characteristic, drawn from the nature of the transactions carried out by the taxpayer, and more specifically, whether he carried out a cross-border exchange of securities within the European Union internal market.

The Court recalls that a State is ordinarily granted broad latitude when it comes to defining general measures in economic or social matters. Thanks to their direct knowledge of their society and its needs, national authorities are, in principle, better placed than international courts to determine what is in the public interest in economic or social matters, and the Court generally respects the State's understanding of the imperatives of public interest, unless its judgment proves to be "manifestly lacking a reasonable basis." Similarly, the Court tends to recognize a wide margin of appreciation when the situation is partly the result of individual choice. Conversely, only very compelling considerations can justify a difference in treatment based exclusively on nationality.

In this case, the Court notes, first, that the difference in treatment at issue is not based on the taxpayers' nationality, but on certain characteristics of the transactions they carried out. Second, it notes that the taxed gains result from transactions freely entered into, the taxpayers having chosen to dispose of their securities with full knowledge of the facts. Third, it observes that the difference in treatment at issue falls within the realm of taxation, this area being part of the core prerogatives of public authorities.

Regarding the existence of a “rapport raisonnable de proportionnalité” (reasonable relationship of proportionality) between the means employed and the aim sought to be achieved, the Court has already acknowledged that accession to the European Union and the specific nature of the European Union legal order could justify a difference in treatment between nationals of Member States and other categories of foreign nationals. However, it has never been called upon to rule on a situation of reverse discrimination, in which the rules of a domestic legal order are less favourable than those applicable to situations covered by European Union law. In this regard, the Court reiterates that it is not its task to replace the competent national authorities in determining what is in the public interest in economic or social matters or in assessing whether – and to what extent – ​​differences between situations that are similar in other respects justify differences in treatment. It is solely for it to determine whether any difference in treatment implemented exceeds the margin of appreciation granted to the Contracting States.

In this case, the Court notes, like the French Constitutional Council and the Council of State (Conseil d’Etat), that the domestic legal system also includes rules with similar effect. The tax deferral regimes applicable to capital gains from the exchange of securities are intended to guarantee a degree of tax neutrality for these transactions by preventing the taxpayer from being forced to sell their securities to pay the tax. Only the degree of tax neutrality of the exchange of securities transaction varies, being reinforced for situations falling within the scope of Directive 2009/133.

The Court further notes that the deduction for holding period provided for in Article 150-0 D of the French General Tax Code is intended to apply to all capital gains on securities when the conditions set out in that article are met. This text does not, in principle, exclude capital gains realized in purely domestic situations from its scope. While this allowance does not apply to capital gains carried forward prior to January 1, 2013, this is primarily an effect of the transitional provisions attached to the tax reform implemented by the Finance Acts for 2013 and 2014.

However, the Court has already observed that the implementation of economic or social reforms intended for a broad public requires determining their temporal scope, which implies excluding certain beneficiaries according to criteria that may appear arbitrary to the persons concerned; the resulting differences in treatment are the inevitable consequence of the introduction of new rules. In the Court's view, these transitional provisions do not appear arbitrary.

The Court considers that the difference in treatment at issue was based on an objective justification and was not manifestly lacking a reasonable basis. In view of all these considerations, the Court considers that the respondent State did not exceed the wide margin of appreciation available to it in this matter. Accordingly, there has been no violation of Article 14 of the Convention.

One of the four components of discrimination is that the rule at issue must establish a distinction based on a prohibited criterion. In CJEU case law, criteria are prohibited when they establish a distinction based on a cross-border element, such as the fact that the services are obtained from a provider established in another Member State. This is a preliminary question to be examined before the Court assesses comparability and the existence of a disadvantage. If the rule at issue does not establish a distinction based on a prohibited criterion, there can be no discrimination.

Despite the lack of clear guidelines on how to resolve specific cases, one thing is clear: unlike the CJEU, which consistently demonstrates concern for the functioning of the common market and the promotion of free movement in its tax discrimination cases, this is not the case for the Human Rights Court. The CJEU frequently concludes that tax policies are discriminatory because they "discourage" or "deter" cross-border economic activity. This interpretation makes sense considering that one of the explicit objectives of the EU's creation was to integrate the economies of previously independent states by removing barriers to cross-border economic activity and preventing states from erecting new ones that would prevent taxpayers from operating across borders. The problem with tax discrimination decisions, however, is that they provide little guidance on when tax policies "discourage" or "deter" the type of cross-border economic activity in question.

Tax discrimination cases raise complex questions with no readily available answers. For example, what impact do differential tax rates have on determining whether discrimination exists? These questions attract much commentary, but neither the judicial decisions themselves nor the academic commentaries on them provide answers to these fundamental questions.

Budapest Pride: banned? - Banning Pride as a violation of EU free movement

 

Attila Szabó, LLM in European law, Head of Legal Aid Service, Hungarian Civil Liberties Union

The author would like to thank Steve Peers and Máté Szabó, HCLU's professional director, for their ideas for the text!

 

Photo credit: Tételes istentagadó, via Wikimedia Commons

 

On 5 April, Renáta Uitz published a pinpoint blog post on Verfassungblog about how and why Budapest Pride, which has been held every year for 30 years in Hungary for the equality of LGBTQ+ people, was banned. Uitz describes in detail why this is contrary to Article 2 of the TEU and how this government action violates the European Court of Human Rights case law. The CEU (and Royal Holloway) professor also explains how Hungary got to this point.

 

I would like to add two things to this reflection. One is just brief: Hungarian civil society organisations are committed to organising and hosting Pride and the Mayor of Budapest also supported the organizers, despite the categorical legal ban, on the very same fundamental rights basis that Uitz explains: assembly and thus standing up for LGBTQ+ rights is a fundamental right and can only be restricted if it restricts another fundamental right. The abstract and unscientific paedophile arguments that the Hungarian government is operating with are not. Consequently, the restriction of rights is also contrary to the Hungarian Fundamental Law and goes against the ECtHR case law cited by Uitz.

 

It is another matter that the Hungarian legislator allowed for fines to be imposed on the basis of the face recognition system at banned rallies, such as the Budapest Pride, which was planned to take place despite the ban. The legal issues involved would require a separate blog post. A very careful Hungarian-language piece concludes that "the use of facial recognition technology to detect and punish offences, and thus to restrict assembly and free expression, may be objectionable on a number of points. Although (...) the prohibition rules (Article 5 of the EU AI Regulation) do not directly preclude the non-real-time use of facial recognition technology, there are nevertheless a number of fundamental rights concerns which render the use of the system unlawful. The primary avenue of redress may therefore be to invoke these fundamental rights violations."

 

My argument, which may be news to many, is that the restriction runs counter to one of the EU's four freedoms, the right of free movement and residence. This is what I want to convince readers of.

 

Freedom of movement: limited?

 

In my view, if a non-Hungarian EU citizen can enjoy the right to participate in an LGBTQ+ rights march in every EU country then she can not freely choose this given country.

 

Participation in Pride is a fundamental right that has become part of Atlantic and therefore European culture. All EU citizens have the right to express their support for LGBTQ+ people in any EU Member State within the framework of Pride. If an EU citizen is not allowed to participate in Budapest Pride because it cannot take place, he or she is not free to choose Hungary as a place of residence, as this means that he or she cannot freely exercise in that Member State the fundamental rights that he or she could exercise in another Member State. So, an EU citizen who is committed to LGBTQ+ rights cannot come to Hungary to work or study, because he cannot stand up for the rights he could stand up for anywhere else in any city.

 

One might think that restrictions on freedom of movement are only violated if hard barriers are put in place, but in my view this is not the case. If a Member State introduces an ideological, ideological, theoretical or even religious restriction that alienates other EU citizens from exercising their right to move and reside freely, then that right is infringed. This is particularly so in cases where the exercise of the right in question is consensual in the EU or protected by human rights court decisions and other international law standards. Participation in Pride is such a case.

 

In my view, this conclusion is true in all cases where an EU citizen wishes to stay in Hungary on a long-term basis, but is discouraged from doing so by this kind of unlawful restriction of a fundamental right, and also in cases where an EU citizen wishes to come to Budapest specifically for Pride. The latter case is not unprecedented either, as Budapest Pride in recent years has hosted many EU citizens who would not otherwise have stayed in Hungary for a longer period. So banning Pride is not only an obstacle to the free movement of those who would like to attend such an event but cannot, but also to those who attend a formally illegal event and face sanctions for doing so.

 

Based on Art 6 of Directive 2004/38, free movement also extends to people who make short-term visits, ie to participate in an event or demonstration. The Cowan and Bickel and Franz judgments show that free movement rights in the context of short-term visits go further than entry onto the territory – ie. equal treatment as regards victims’ rights and fair trial rights respectively.

 

Legal bases and arguments

 

The right to freedom of movement is a cornerstone of EU law, enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU). Furthermore, the EU Charter of Fundamental Rights reinforces this right, particularly Article 45, which explicitly states that every EU citizen has the right to move and reside freely within the territory of the Member States. Although Article 51 of the Charter says that the Charter itself should only be taken into account in the application of EU law, I am not arguing that the Charter should be taken into account in relation to the right of assembly in the Member States. I say that the Charter should be taken into account in relation to Article 21 TFEU. Indeed, the restriction on the right of assembly restricts this EU right, guaranteed in TFEU Article 21, as follows.

 

The Court of Justice of the European Union (CJEU) plays a vital role in shaping and expanding the interpretation of EU freedom of movement, particularly in light of the EU Charter of Fundamental Rights. The CJEU increasingly considers the Charter when assessing national measures that may restrict freedom of movement. This means that restrictions must not only be justified under EU law but also comply with fundamental rights.

 

Cases involving the rights of LGBTQ+ individuals and their families have highlighted the CJEU's willingness to use the Charter to protect fundamental rights within the context of freedom of movement. The Charter has strengthened the protection of freedom of movement by providing a clear and comprehensive list of fundamental rights. It has also given the CJEU a stronger basis for challenging national measures that are deemed to be incompatible with these rights.

 

The Coman and Hamilton (C-673/16) judgment helps us to understand the context. This case dealt with the refusal of a Romanian authority to recognize the marriage of a Romanian citizen with a US citizen, a same-sex couple, celebrated in Belgium. The CJEU ruled that the term "spouse" in the context of EU freedom of movement includes same-sex spouses. The Court emphasized the need to respect the fundamental rights of EU citizens, including the right to respect for private and family life (Article 7 of the Charter) and the principle of non-discrimination (Article 21 of the Charter). This case significantly expanded the rights of same-sex couples in the EU, ensuring that their family life is protected when exercising freedom of movement.

 

Steve Peers wrote about the case that “[t]he Court added that any measure restricting free movement rights also has to comply with human rights guaranteed by the EU Charter of Rights, which has to be interpreted consistently with the European Convention on Human Rights. According to the case law of the European Court of Human Rights, “the relationship of a homosexual couple may fall within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation.”

 

In another case (C-808/21), the CJEU determined that EU citizenship, established by the Maastricht Treaty and articulated in Article 20 TFEU, implies a right for EU citizens to join political parties in other Member States, despite the absence of explicit provisions. The Court reasoned that denying this right undermines the effective exercise of voting rights in municipal and European Parliament elections, which are expressly granted to EU citizens. The CJEU emphasized the principle of equal treatment under Article 22 TFEU, stating that Member States cannot impose conditions on non-national EU citizens that are not applied to their own nationals. While acknowledging national identity and the Member States' authority over national elections, the Court asserted that EU values, such as democracy and equal treatment, limit national discretion. The Court's rulings enhance EU citizenship's political rights, reinforcing its role as a fundamental status within the EU legal order. Finally, the court linked the right to join political parties to Article 12 of the Charter, which concerns freedom of association.

 

Peers wrote in the Verfassungblog that “remarkably, the Court links the implied political rights of EU citizens in municipal and European Parliament elections not only to the express rights of EU citizenship, but also to democracy and equal treatment, as represented in Article 10 TEU and the EU’s values – putting them at the same rank as national identity. So national identity cannot constitute an exception to democracy or the rule of law et al – but must be reconciled with those values.”

 

I think that the EU understandings, based on the ECtHR rulings, is that restrictions on certain political freedoms are not only a violation of EU law if they discriminate against EU citizens, but also if they restrict those rights without discrimination. For, as I argued above, a Member State that falls below the standards of European fundamental rights is in fact restricting the free movement of its citizens by alienating the citizens of other States from the freedom of movement and residence. Who would like to study in Budapest without being able to choose to participate in the celebration of equality according to sexual orientation? I think it can be argued that far fewer people would do so than if this right were not restricted.

 

The EU’s Fundamental Rights Agency has a more detailed collection of relevant cases.  These cases demonstrate the CJEU's commitment to protecting fundamental rights within the context of freedom of movement. The EU Charter of Fundamental Rights provides a vital framework for the CJEU's interpretation of EU law in this area.

 

Obviously, the facts of these cases are different from those of the Budapest Pride ban, but they follow a similar logical structure: that is, national measures become relevant under EU law when, in the exercise of free movement, they deprive an EU citizen of fundamental rights that would be guaranteed in another Member State.

 

Conclusion: no pasarán

 

I argue that banning Budapest Pride is not only a violation of the Hungarian Fundamental Law, not only a violation of the European Convention on Human Rights, not only a violation of Article 2 of the TEU, but also a violation of the right to freedom of movement and residence. There is the same human rights minimum without which an EU Member State cannot be considered so free, so grounded in European values, that a citizen of any other Member State is free to choose to travel and reside there. Member States must not violate the privacy prohibitions on which freedom of movement and residence are based, and they must not, in my opinion, exclude citizens of other Member States from joining political parties by excluding everyone equally. In the same way, Member States cannot exclude EU citizens from lawful assembly by European legal standards. If they do so, they restrict freedom of assembly.

 

Of course, many things can deter an EU citizen from moving to another Member State: from the climate, to the quality of social and health services, to tax policy. However, fundamental rights deterrence is different from other types of deterrence because of the Charter and the relevance of ECtHR jurisprudence. Denial of fundamental rights, on the other hand, carries a normative message: 'You cannot exercise certain fundamental rights here'. And it is no longer a matter of preference for the person, but of the exercise of his or her citizenship status. It is up to the Court of Justice of the European Union to work out the yardstick for this.

Plot twist? Case C-128/18 Dorobantu: detention conditions and the applicability of the ECHR in the EU legal order

Ágoston Mohay, University of Pécs Faculty of Law

Introduction

The EU legal order is generally seen as a sui generis supranational legal order, separate from both international law and national law. Within this legal order, the protection of fundamental rights takes a prominent place: based on Article 6 TEU, the EU’s fundamental rights architecture rests on three pillars: 1) the Charter of Fundamental Rights of the European Union, 2) the EU’s accession to the European Convention on Human Rights (ECHR), and 3) the general principles of EU law based on the ECHR and the common constitutional traditions of the Member States. As is known, Opinion 2/13 of the Court of Justice of the European Union (discussed here) deemed the first version of the ECHR accession agreement incompatible with EU primary law. (A second attempt will soon get underway) This does not affect of course the role of the ECHR and the jurisprudence of the European Court of Human Rights (ECtHR) as “sources of inspiration” of the general principles of EU law. In Case C-128/18 Dorobantu however, the CJEU seems to introduce a new way of application for ECHR law, one which arguably goes beyond the Court’s hitherto applied method.

Background and the main proceedings

In substantive terms, the Dorobantu case revolves around the grounds for refusal of the execution of a European arrest warrant (EAW). In this regard it falls into the line of cases delivered by the CJEU in recent years regarding limits on the execution of EAWs due to fundamental rights and rule of law concerns, and can (and should) be analysed and evaluated from that point of view as well. This short analysis will however focus not on this issue, but on the CJEU’s reliance on and application of the ECHR and ECtHR case law.

The case concerned the execution by a German court (Higher Regional Court, Hamburg) of an EAW issued by a Romanian court in respect of a Romanian citizen, Mr Dorobantu. Dorobantu was being sought by the Romanian authorities for the purposes of conducting a criminal procedure against him. The German court  executing the EAW, having regard to the CJEU’s Aranyosi and Căldăraru judgment (discussed here), proceeded to assess whether

as regards the detention conditions, there are in the issuing Member State deficiencies, which may be systemic or generalised, or which may affect certain groups of people or certain places of detention, and, second, check whether there are substantial grounds for believing that the person concerned will be exposed to a real risk of inhuman or degrading treatment because of the conditions in which it is intended that that person will be detained in that State. (para 21)

The German court was of the opinion (based inter alia on relevant judgments of the ECtHR) that systemic and generalised deficiencies in detention conditions were indeed discernible in Romania, however, the German court also took into account the information communicated by the issuing Romanian court and the Romanian justice ministry and finally concluded that the surrender of Mr Dorobantu was legal, since detention conditions had been improving in the issuing state, and since some measures had been implemented in order to compensate detainees for the lack of personal space. The court also took into account that should the execution of the EAW be refused, the offences committed by Mr Dorobantu would remain unpunished, which would run counter to the efficacy of judicial cooperation in criminal matters.

On the basis of the German court’s orders, the surrender of Mr Dorobantu was authorised – the surrender was to take effect once he had served his custodial sentence imposed on him in Germany for other offences committed. When he was released however, Mr Dorobantu lodged a constitutional complaint against the order of the German court at the Federal Constitutional Court of Germany (Bundesverfassungsgericht). The Federal Constitutional Court set aside the orders of the Hamburg Regional Court for three reasons: 1) Mr Dorobantu’s right to be heard by a court or tribunal established in accordance with the law as enshrined in the German Basic Law had been infringed; 2) the criteria applied by the Hamburg court in its assessment of detention conditions in Romania have not been expressly accepted by the ECtHR as factors capable of compensating for a reduction of the personal space available to detainees; 3) neither the CJEU nor the ECtHR had previously ruled on the relevance of criteria relating to criminal justice cooperation in the EU and to the need to avoid impunity for offenders as factors relevant for deciding on the execution of an EAW. For these reasons the Federal Constitutional Court remitted the case to the Hamburg court.

It was this court that requested a preliminary ruling by the CJEU in order to ascertain the requirements that arise under Article 4 of the EU Charter (which corresponds to Article 3 ECHR: freedom for torture or other inhuman or degrading treatment, which includes poor prison conditions according to case law) with respect to detention conditions in the issuing Member State and the criteria to be used in assessing whether those requirements have been met, especially in accordance with Aranyosi and Căldăraru.

The Court’s judgment

In its preliminary ruling request, the German court was enquiring about the minimum standards for custodial conditions required under the EU Charter, and about the interpretation of  the concept of “real risk” of inhuman or degrading treatment as used by the CJEU in Aranyosi and Căldăraru. The Court began by a usual overview and reaffirmation of the EU’s fundamental rights system. It underlined further the significance of mutual trust and mutual recognitions in EU justice and home affairs law, and added that exceptional circumstances may require limitations to be placed on these principles, especially in light of its judgments in Aranyosi and Căldăraru, Minister for Justice and Equality (Deficiencies in the system of justice) (discussed here), and Generalstaatsanwaltschaft (Conditions of detention in Hungary), but only based on precise information. At this point, however, the CJEU encountered a difficulty. The Hamburg court was looking for guidance on how to assess conditions of detention as regards the personal space available to each detainee – but EU law contains no rules on this issue.

So the CJEU got creative: “On that basis, it must be noted that the Court has relied — having regard the considerations referred to in paragraph 58 of the present judgment, and in the absence, currently, of minimum standards in that respect under EU law — on the case-law of the European Court of Human Rights in relation to Article 3 of the ECHR and, more specifically, on the judgment of 20 October 2016, Muršić v. Croatia…” (para 71). Paragraph 58 states: “…it must, as a preliminary point, be recalled that, in accordance with the first sentence of Article 52(3) of the Charter, in so far as the right set out in Article 4 of the Charter corresponds to the right guaranteed by Article 3 of the ECHR, its meaning and scope are to be the same as those laid down by the ECHR. In addition, the explanations relating to the Charter make clear, with respect to Article 52(3), that the meaning and the scope of the rights guaranteed by the ECHR are determined not only by the text of the ECHR, but also by the case-law of the European Court of Human Rights and by that of the Court of Justice of the European Union.”

In the following, the CJEU conducted an analysis of the necessary minimum space based on Muršić v. Croatia, supported partly by its own judgment in Generalstaatsanwaltschaft, and concluded that Mr Dorobantu should, once surrendered, be detained in a prison regime that would enable him to enjoy significant freedom of movement and also to work, which would limit the time spent in a multi-occupancy cell, and left it to the referring court to verify that information and to assess any other relevant circumstances for the purposes of the analysis it is required to make.

(As regards the other questions of the referring court, the CJEU held that a real risk of inhuman or degrading treatment cannot be ruled out merely because the person concerned has, in the issuing Member State, access to a legal remedy; it furthermore found that the real risk of inhuman or degrading treatment cannot be weighed “against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition.”)

Commentary

The ECHR – to which all EU Member States are parties – has long played an important role in the fundamental rights architecture of the EU: since the 1970s, it has been referenced by the CJEU as an important source of inspiration for the general principles of EU law, and given the fact that the EU Charter only received legal binding force in 2009 via the Treaty of Lisbon, its significance cannot be overestimated: the CJEU has been relying on the ECHR and the case law of the ECtHR (alongside the common constitutional traditions of the Member States) for decades as guidelines for developing its own jurisprudence on fundamental rights as unwritten principles of EU law, a concept which was recognized and supported by a joint declaration of the European Parliament, the Council and the Commission already in 1977. Thus reliance on the ECHR, the “benchmark” in European human rights protection is of course nothing new, and even though the Lisbon Treaty endowed the Charter of Fundamental Rights of the EU with legal binding force, the continuing parallel existence of the general principles in the post-Lisbon era is expressly recognized by Article 6(3) TEU. Moreover, Article 52(3) of the Charter refers back to the ECHR.

What can however be considered new is the method by which the CJEU introduced a direct application of Article 3 ECHR as interpreted by Muršić v. Croatia. Interestingly, the judgment makes no mention at all of the general principles of EU law and does not reference its own jurisprudence regarding how the ECHR may have an indirect relevance in EU law. In Dorobantu, the EU court saw no reason to reference the general principles of EU law as the intermediary through which the ECHR can have an effect in the EU legal order.

Granted, the CJEU references the ECHR for other purposes as well, mainly to support elements of its argumentation, but again in a sense which cannot be regarded as direct application. To make some comparisons: In its landmark judgment in N. S. and M. E. (finding that asylum-seekers who were the responsibility of Greece under the Dublin system faced an Article 4 Charter risk there), the CJEU referenced the EctHR’s M. S. S. judgment, but did so in order to pinpoint notable similarities and more importantly to argue that national courts in the EU did not lack the means to assess fundamental rights compliance of other Member States in the context of Dublin procedures; it further cited the case to compare the scope of relevant rights under the Charter and the ECHR. (It is true of course that rules on the Dublin procedure were definitely not lacking in EU law, so the situation was not entirely the same.) In the aforementioned Aranyosi and Căldăraru case, the CJEU referenced the ECHR and ECtHR jurisprudence to argue that the right enshrined in Article 4 of the EU Charter was absolute, as it corresponded to Article 3 ECHR from which no derogation is possible under Article 15(2) ECHR. (Perhaps it is also worth noting that the referencing German court was prompted to initiate a preliminary ruling procedure partly by the ECtHR judgment in Varga and others v. Hungary.)

Furthermore, since Kamberaj it is known that the ECHR does not “enjoy the benefits” of direct effect and primacy of application over national law by virtue of Article 6 (3) TEU, as the TEU does not govern the relationship between the ECHR and the Member States’ legal systems, and thus it cannot have the effect of transforming the ECHR into a directly applicable quasi-EU law norm with primacy over national law. Based on Kamberaj it can thus be ruled out that the ECHR was applied in Dorobantu via the principles of direct effect and primacy.

Even though the method utilised by the Court of Justice in Dorobantu is new in the context of the ECHR, it does bring to mind a similar method the Court applied in Poulsen and Diva Navigation. In the fisheries-related dispute, a national court was asking the CJEU (among other things) whether EU law (Community law at the time) contained any provisions on the situation of distress. Apparently it did not, and the Court pointed the national court towards international law, by proclaiming that “[i]n those circumstances, it is for the national court to determine, in accordance with international law, the legal consequences which flow (…) from a situation of distress involving a vessel from a non-member country.”

As research has shown, the CJEU tends to cite the ECHR and the case law of the ECtHR less frequently since the entry into force of the Lisbon Treaty. Since the CJEU’s – heavily autonomy-centric  and much discussed – Opinion 2/13, the EU’s accession to the ECHR stalled, at least until recently. Time will tell if this novel method of reference used in Dorobantu (by the Grand Chamber no less) catches on and whether the Court will tend to rely on it as a temporary stand-in until formal ECHR accession eventually happens. In any case the Dorobantu judgment also underlines the relevance and significance of judicial dialogue between European courts.

Dorobantu is also important more generally as regards the relationship between international law and EU law and the applicability of international law norms within the EU legal order. This recent judgment seems to fall into the line of cases (such as Haegeman, Racke, ATAA or Front Polisario, discussed here) that demonstrate a strong Völkerrechtsfreundlichkeit (or a monist approach, if you will) on behalf of the CJEU and seem at odds with judgments based on an more autonomy-centric (or dualist) approach (such as Kadi, Achmea or indeed Opinion 2/13).

On a final note, one cannot but note the slight irony in the following. In Opinion 2/13, the CJEU found it problematic that the EU Member States could take each other to court in Strasbourg for the infringement of the ECHR, whereas EU law on the other hand required them to rely amongst themselves on the principle of mutual trust. Now in yet another judgment regarding the EAW, the CJEU (similarly as it did in Aranyosi and Căldăraru, Minister for Justice and Equality, and Generalstaatsanwaltschaft) has relied – one way or another – on the ECtHR jurisprudence to underline the existence of exceptional circumstances under which Member States are required to derogate from the principle of mutual trust.

Barnard & Peers: chapter 9, chapter 25

Photo credit: via Wikicommons

Jonathan Sumption’s view of human rights makes no sense in relation to the history of gay rights

Professor Paul Johnson, Head of the Department of Sociology at the University of York; editor, ECHR Sexual Orientation Blog

Jonathan Sumption, in his Reith Lecture “Human Rights and Wrongs”, attempts to persuade us that the European Court of Human Rights has usurped the power of democratically elected governments by way of an ever expanding interpretation and application of the European Convention on Human Rights. Sumption claims that the Court is continually adding rights, in areas that should be left to governments to legislate in, by interpreting the Convention in ways that it was never intended to do so.

This is not the first time that Sumption has made such claims. Back in 2016, Sumption argued that the Court was “the international flag-bearer for judge made fundamental law extending well beyond the text which it is charged with applying”. Sumption’s claims chime with the idea, popularized by some politicians, that Strasbourg judges routinely exceed their authority in order to impose changes on and meddle with law in the UK and, in doing so, “abuse” human rights.

If you are a gay or lesbian person reading this, you might be particularly irked by Sumption’s remarks. And if you are irked, it’s probably because you know that, whilst the Strasbourg Court has certainly played an important part in bringing about changes to UK laws that once discriminated against people on the grounds of sexual orientation, the Court has also frequently adopted a conservative interpretation of the Convention and, much to the disappointment of gay men and lesbians, rejected complaints about sexual orientation discrimination.

When it comes to sexual orientation issues, it is restraint rather than activism that has usually been a hallmark of the Strasbourg approach to interpreting the Convention. So, whilst Sumption would have us believe that the Court has invented mechanisms – like its “living instrument” doctrine – to enable it to give rights away to everyone, the reality is that the Court is usually very careful and cautious in evolving its interpretation of the Convention. And in terms of sexual orientation discrimination, the Court’s approach has often proved extremely frustrating and damaging.  

For example, take the criminalization of private same-sex sexual acts between consenting adults. Although such criminalization no longer exists in Europe, it did exist in several countries when the Convention came into force. In 1955, a man who had been imprisoned in Germany for “two cases of homosexuality” under law previously enacted by the National Socialist German Workers’ (Nazi) Party complained to Strasbourg about his treatment. Strasbourg rejected the complaint and, in relation to the right to respect for private life enshrined in Article 8 of the Convention – which Sumption claims has been stretched beyond recognition by the Court – stated that this permitted a state to make homosexuality a punishable offence. It took 26 years for Strasbourg to change its mind on this when, in the famous case brought by Jeffrey Dudgeon, it declared that the complete criminalization of same-sex sexual acts in Northern Ireland was in violation of Article 8. However, even in 1981, Strasbourg was quite comfortable to let the UK maintain a higher minimum age for male same-sex sexual acts, and it was only in response to a complaint by Euan Sutherland in the late 1990s that Strasbourg recognized that an unequal “age of consent” was in violation of the Convention.

Nearly every aspect of sexual orientation discrimination complained about in the Court has followed the same pattern. Complaints about such discrimination have been rejected time and time again, until Strasbourg has finally come around to recognizing a further aspect of “gay rights” under the Convention. And this is because the Strasbourg approach is always cautious and, as Judge Sicilianos has put it, the Court has “always sought to avoid the evolutive interpretation of the Convention from being perceived … as a sort of ‘carte blanche’ allowing for excessive liberties with the text of the Convention”. The Court has avoided such excessive liberties by developing interpretative mechanisms that pay attention to the intentions of those who wrote the Convention, and the “present-day” conditions in which the Convention operates. One such way that the Court does this is by taking into account European consensus on certain issues that come before it, so as to be guided by “present-day” conditions rather than its own view of what societal conditions should be.

The Court’s restrained approach is often a disaster for gay men and lesbians. The clearest contemporary example of this is the Court’s repeated refusal to recognize that the right to marry enshrined in the Convention places states under an obligation to grant same-sex couples access to marriage. Completely contrary to Sumption’s view of what the Court does, the Court has resolutely refused to evolve its interpretation of the right to marry in such a way that would make same-sex marriage an effective human right. As such, the Court’s current position makes the Convention inapplicable to same-sex couples who are excluded from marriage in European countries, including in one part of the UK.

So I am irked by Sumption’s claims that the Court is usurping state power and meddling in things that should be left to governments and the ballot box. Not only is this not true, some of us wish it were true. If you are a gay man or lesbian in a European country where you have very few rights, are subject to horrendous forms of discrimination, and are at the mercy of a majority who will not support legal change by parliamentary means, then you look to the Strasbourg Court for help. Unfortunately, because the Strasbourg Court often behaves in exactly the opposite way to how Sumption describes it, it is often unwilling to extend the protection of the Convention to gay men and lesbians in ways that would challenge homophobic domestic laws. To put it simply, when gay men and lesbians knock at Strasbourg’s door and ask for help, they very often have the door slammed in their faces.

The European Court of Human Rights is the conscience of Europe. It interprets a Convention that opens with the commitment to the maintenance and further realization of human rights. To further realize human rights the Court must evolve its interpretation of the Convention and, therefore, it must be encouraged to do so. We – the “everyone” that the Convention secures human rights and fundamental freedoms to – must demand, encourage and support the Court in interpreting the Convention in ways that challenge prevailing forms of inequality and discrimination in European countries. That’s why Sumption is wrong that human rights law should not, for the most part, be used to decide sensitive issues which should be decided through the ballot box. Such a view encourages Strasbourg to be cautious; on the contrary, we should encourage Strasbourg to be bold in realizing a vision in which human rights law prevails in Europe.

Listen to some of the gay men and lesbians from the UK who have taken cases to Strasbourg here: https://goingtostrasbourg.com/podcast

Barnard & Peers: chapter 9, chapter 20

Photo credit: ECHR Sexual Orientation Blog

Harassment of Human Rights Defenders: Measuring Democracy, Bad Faith and Hidden Agendas - What Role for the European Court of Human Rights?

Dr Marco Antonio Simonelli, PhD, University of Siena, and Alast Najafi, LLM candidate, University of Leiden

A. Introduction

In its recent judgment of Aliyev v. Azerbaijan, the European Court of Human Rights (hereafter the Court) activated anew the long dormant Article 18 ECHR (which provides that States shall not abuse the possible limitations on human rights which the Convention allows)  to unanimously find a violation thereof. The judgment is the third case this year where the Court found an Article 18 violation in Azerbaijan, but still remains unprecedented, since it allowed the Court for the first time to find a violation of that provision in conjunction with Article 8 ECHR (the right to private and family life). The judgment also indicates the measures to be adopted by the Azeri Government to execute the judgement, while drawing at the same time a dramatic picture of the political situation in Azerbaijan.

The present piece briefly illustrates the facts of the case, to subsequently consider the application of Article 18 in the light of the test elaborated by the Grand Chamber in Merabishvili v. Georgia (1). It is claimed that whilst, on paper, the “predominant purpose” test may be flawed, its application in Aliyev unveils Article 18’s promising potential in countering rule of law backsliding (2). In a third step, the significance of the recommendations given by the Court under Article 46 ECHR will be examined, that prove themselves as being a useful tool for enhancing the European supervision of “rebel” States, while leaving the more political aspects of the Convention’s enforcement mechanisms to the Committee of Ministers (3). In the conclusions, it will be sketched out which role Strasbourg could play in safeguarding democracy across Europe (4). 

1. The facts

Similar to the facts in Rasul Jafarov v. Azerbaijan, the case concerned criminal proceedings brought against a civil-society activist, well-known human rights defender and chairman of a non-governmental organisation. Charged for illegal entrepreneurship, large-scale tax evasion and aggravated abuse of power, the applicant was detained, and several documents and objects were seized during the search of his association’s office and home. While still in detention, new charges were brought against the applicant that lead to a five-year suspended sentence and his release in March 2016. The Court held that there had been, inter alia, a violation of Article 18 taken in conjunction with Articles 5(1)(c) (concerning pre-trial detention) and 8(2) ECHR, since both his detention and the search of his office and home pursued the illegitimate aim to silence and punish the applicant for his activities in the field of human rights.

2. The considerations under Article 18

Article 18 ECHR states that restrictions on Convention rights shall not be applied for any purpose other than those for which they have been prescribed. For a long time, this Article has not been of any practical importance in the Court’s jurisprudence. Yet, a slow but steady rise can be observed since 2004, when the Court for the first time found a violation of that provision in Gusinskiy v. Russia, leading to eleven violations to the present day. This judicial chain culminated, at the end of 2017, in the Grand Chamber ruling in Merabishvili, which set out general principles with regards to the interpretation and application of Article 18. (See the Court’s guide to the application of Article 18).

Reiterating its findings in Merabishvili, the Court reaffirms the much criticized “predominant purpose” test. Indeed, this test faced criticism since the very moment of its genesis: the two concurring opinions attached to the judgment in Merabishvili attack the test for being vaguely defined and not providing objective criteria, and also scholars considered the test to be too narrowly constructed. Be that as it may, the test prescribes that a restriction of one of the substantive rights of the ECHR engages the responsibility of a State under Article 18 when a purpose which is prescribed by the Convention only serves to mask an illegitimate predominant and ulterior purpose. Contrary to what the Government tried to argue, the Court also confirms the main novelty of the Merasbishvili judgment, namely that States no longer enjoy a general presumption of good faith.

Applying these principles to the present case, the Court points out that the “combination of the relevant case-specific facts in the applicant’s case [were] similar to that of Rasul Jafarov (…) where proof of ulterior purpose derived from a juxtaposition of the lack of suspicion with contextual factors”. Unlike in Khodorkovskiy v. Russia, no “healthy core” was to be found in the charges against the applicant. Therefore, the Court, after delivering a comprehensive and alarming analysis of the political situation in Azerbaijan - the Court points out restrictive legislation towards non-governmental organisations and the fact that “[s]everal notable human-rights activists have been similarly arrested and charged with serious criminal offences” (Aliyev, §208-214) - has no problem in finding a violation of Article 18 in conjunction with Article 5 and 8 ECHR.

The manner in which the Court reached the conclusion that there has been a violation of Article 18 sheds a new light on the relevance of the “predominant purpose” test. In Merabishvili, the Court considered as non-decisive the evidence submitted by the applicant in an attempt to demonstrate that his detention had been politically motivated. By contrast, in the present case, the political situation appears to have played a decisive role in the Court’s assessment.

A paradigmatic example is provided by the different weight attached to the statements from government officials. While considering in Merabishvili that “[s]uch statements can only be seen as proof of ulterior purpose (…) if there is evidence that the courts were not sufficiently independent” (§ 324); the Court’s finding in Aliyev that “the applicant’s arrest was accompanied by stigmatising statements made by public officials” (§ 210) amounts to an element of proof to conclude that the proceedings brought against the applicant were politically motivated. This new approach to the application of Article 18 ECHR aligns better with what Judges Yudkivska, Tsotsoria and Vehabović had in mind when writing their separate opinion in Merabishvili: “when there is evident misuse of State machinery for improper political ends, the Court should treat it by default as the predominant purpose and thus find a violation of Article 18” (Joint Concurring Opinion of Judges Yudkivska, Tsotsoria and Vehabovic, § 38).

3. The “recommendations” under Article 46: a new instrument of European supervision?

After having decided the case on the merits, the Court moves on to consider the application of Article 46 ECHR (§ 220-228), which concerns the legal force of Court judgments. Considering its earlier case-law, where the Court had already found Article 18 violations in Azerbaijan, the Court finds that the events “cannot be considered as isolated events” but reveal a “troubling pattern” of arbitrary arrest and detention of government critics and human rights activists and a “misuse of criminal law in defiance of the rule of law” (Aliyev, §223). Furthermore, the Court notices that applications raising similar issues have been communicated to the Azerbaijani Government or are pending before the Court.

It has to be underlined that the Court was not only faced with a practice incompatible with the Convention but with a State which openly disregards the rule of law, as the Court worryingly stressed itself. Indeed, the measures to be adopted when domestic courts limit themselves to an “automatic endorsement of the prosecution’s application” (Aliyev, §223) can hardly be identified.

Nonetheless, the Court decided to indicate general measures to be taken by Azerbaijan to comply with the judgment, i.e. the eradication of politically motivated prosecution against human rights activists. The practice to indicate measures of general application - without going the whole way of a pilot- judgment procedure – is becoming ever common in Strasbourg case-law (Sicilianos, 2017). However, notwithstanding their frequent use by the Court, the assessment of their legal value proves to be complex.

A prompt answer can be given by restricting the analysis to the operative part of the judgment: if the Court’s indications are not echoed in the operative part, they can be considered by the respondent State as no more than obiter dicta.

Such a conclusion proves unsatisfactory in the present case. On the one hand the judgment fails to address concrete measures towards Azerbaijan in its operative part. Yet, on the other hand, the formulations chosen by the Court – “the respondent State must focus on the protection of critics of the government”, “[t]he measures to be taken must ensure the eradication of retaliatory prosecutions”, “The individual measures to be taken by the respondent State [..] must be determined in the light of the terms of the Court’s judgment” (Aliyev, §226-227) – are of a strong prescriptive nature and cannot be classified as mere recommendations.

The most satisfying answer, at least in the present case, is to view these indications rather as a message directed at the Committee of Ministers (which has the task of following up the implementation of the Court’s judgments under Article 46 ECHR) than at the Azeri Government; in fact, there are two good reasons to think so.

First, according to Article 46(2) ECHR, the primary responsibility for the supervision of the execution of judgments lies with the Committee of Ministers; thus these “recommendations” can be considered as the backdrop against which the Committee of Ministers has to evaluate the implementation of the judgement by the Respondent State. (See Villiger, in Seibert and Villiger, eds). Second, the precise nature of the indications may be interpreted as an attempt by the Court to prevent an action of the Committee of Ministers under Article 46(4) ECHR, which allows the Committee of Ministers to refer to the Court the question whether a respondent state has faithfully executed a judgement. The procedure has been harshly criticized by scholars as being a game in which the Court has nothing to win but much to lose, i.e. its legitimacy (see De Londras and Dzethtsiarou, 2017).

The Committee of Ministers triggered Article 46(4) for the first time in December 2017 to inquire whether Azerbaijan had properly executed the Court’s Judgment in Ilgar Mammadov. Since the execution of the judgment only required the release of the applicant, who was still detained at the time the Committee of Ministers launched the proceeding, the question was purely rhetorical. This impasse, which put the Court in a “impossible position” (De Londras and Dzethtsiarou), was resolved by the eventual release of Mammadov in August 2018. It is very likely that the Court, seeking to avoid being again called upon to sanction the lack of effectiveness of its own judgments, issued precise instructions to address the problem of non-execution, a problem which is, indeed, political.

However, the relevance of these measures goes beyond a mere assistance to the Committee of Ministers in supervising the implementation of the judgments.

A closer look at the last judgments in which the Court indicated measures of general application under Article 46, reveals that, in the last four years, this practice only concerned States with compliance problems with the requirements of the rule of law, in particular Azerbaijan, Hungary, Poland, Russia, Turkey and Ukraine. This pattern suggests that Aliyev may very well be part of a judicial strategy of the Court aimed at enhancing the persuasive force of its rulings. In this reading, the issuing of general recommendations can be seen as a compromise between a judgment in which the Court only orders the State to pay just satisfaction under Article 41 ECHR, and a pilot or quasi-pilot judgment in which the Court prescribes specific measures to adopted by the Respondent State in its operative part. This strategy allows the Court to continue exerting its beneficial influence over countries characterized by a rule of law backsliding, without causing a direct clash with non-abiding States, as this may prove fatal for the very existence of the Council of Europe.

4. Conclusions

Witnessing the possible emergence of new legal approaches is an exciting thing but only the test of time and subsequent judgements will show whether the Court is actually developing a new test under Article 18. In this regard, the Navalny case, currently pending before the Grand Chamber, offers a good opportunity for the Court to further consolidate its case-law, and to revisit its predominant purpose test.

What is sure is that this provision is “the only measuring instrument for democracy” the Convention regime offers. Backing this provision up by taking on a more proactive stance under Article 46 in situations where similar violations recur, leaves the Court better equipped to challenge State practices that repeatedly violate the rule of law and close spaces for civil society. The rule of law backsliding is not intrinsic to the Convention system but emerged very prominently in the European Union, where the so-called Copenhagen dilemma – i.e. the question of how to find effective means to ensure continuous respect of the organisation’s values and sanction violations thereof, once a State has successfully acceded but fails to comply – remains unsolved.

However, the recent line of case-law from Strasbourg, of which Aliyev is the last piece, hints which role could be reserved for the European Court of Human Rights in cases where States abusively undermine democracy by targeting individuals.

Barnard & Peers: chapter 9

Photo credit: ISHR

Freedom to insult? Balancing freedom of expression with religious tolerance in ECHR case law

Professor Steve Peers, University of Essex

A recent judgment of the European Court of Human Rights has raised again the question of whether there should be limits on free speech when someone might be offended by it – in this case, concerning the Muslim faith. It’s a good opportunity to explain the context of the case and assess what – if any – limits should be acceptable on free speech in such cases.

Judgment

The saga of ES v Austria began at a public seminar on “Basic Information on Islam” organised by the institute of a right-wing Austrian political party. An undercover journalist complained to the police about some of the comments made at the seminar (in particular about Mohamed as inclined to pedophilia), and the speaker was prosecuted. She was ultimately convicted and ordered to pay a small fine as a penalty, for breach of Article 188 of the Austrian Criminal Code:

 “Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”

 The conviction was upheld on appeal throughout the national courts, and the applicant then complained to the European Court of Human Rights (ECtHR) that her right to freedom of expression under Article 10 of the European Court of Human Rights (ECHR) had been infringed. Since her free expression had obviously been penalised, the crucial issue in the case was whether the interference with that right was justified under Article 10(2) ECHR, which provides:

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The restriction in this case was “prescribed by law” (as can be seen above), and so the issue is whether the restriction was “necessary in a democratic society”. The Court began its assessment by reiterating (from its prior case law) that freedom of speech is “one of the essential foundations of a democratic society” and applies not just to statements that are “regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Article 10(2) provides “little scope…for restrictions on political speech or on debate on questions of public interest”. In particular, believers in a religion, “irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.”

Having said that, though, the “duties and responsibilities” referred to in Article 10 include (referring again to case law):

“the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 [freedom of religion] to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane….Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures….In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention.”

In this context, prior case law had concluded that ECHR Contracting States “enjoy a certain margin of appreciation” in this field – meaning that the ECtHR does not intensively review how they strike the balance between freedom of speech and the protection of religious sensibilities, in particular as there is no “uniform European conception” of how to strike this balance. Moreover, ECHR States also “have the positive obligation under Article 9 of the Convention of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”. (A “positive obligation” is a legal requirement for the State to take action to protect individual rights, not just to refrain from action such as banning speech or prosecuting people for their comments). A State “may therefore legitimately consider it necessary” to limit the free speech of some which is “judged incompatible with respect for the freedom of thought, conscience and religion of others”, although ultimately the ECtHR exercises some review over how a State strikes that balance in each particular case.

Prior case law has turned on whether a value judgment has sufficient factual proof to support it, and the ECtHR’s role is not “to take the place of the national authorities”, but to review if their decisions are based “on an acceptable assessment of the relevant facts…and whether the interference corresponded to a “pressing social need” and was “proportionate to the legitimate aim pursued””, in light of the “content of the statements” and “the context in which they were made”. Also, “the nature and severity of the penalty imposed are also factors to be taken into account”. If the national authorities have already applied such a balancing exercise in line with these criteria, “the Court would require strong reasons to substitute its view for that of the domestic courts”.

Applying those principles to this case, the subject matter was “particularly sensitive”, and so “the domestic authorities had a wide margin of appreciation” because “they were in a better position to evaluate which statements were likely to disturb the religious peace in their country”. The seminars in question were public, and Austrian law did not simply “incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance.” The national courts “extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation”, and the ECtHR agreed with the lower court “that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”.

The Court went on to agree with the national courts that in this case, value judgments did not have “sufficient factual basis”, and rejected the argument that “a few individual statements had to be tolerated during a lively discussion”. In the judges’ view, “it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable.” Finally, the Court took into account the very modest sanctions applied to the speaker.

Comments

Context

As noted at the outset, it’s necessary to explain the context of this case – given that it seems to be widely misunderstood. First of all, the ECtHR is not an “EU court” applying EU law, but the court of 47 European countries applying the ECHR, an international treaty separate from EU law. EU law touches on religious issues when it comes to religious discrimination in employment (see the case law discussed here), animal welfare issues, or persecution of refugees on grounds of religion – but has nothing to do with the issue of prosecution for offending religious sensibilities.

Secondly, the ECtHR is in no sense applying “Sharia law” here. The complaint was not made by a Muslim organisation, but by an undercover journalist. The Austrian law was not enacted solely to protect the Islamic faith, but other faiths too; and it was not motivated by Islamic doctrine. The ECtHR distinguishes the Austrian law from a ban on “blasphemy”, considering that it requires an additional element. Nothing in the judges’ reasoning refers to “defaming” Mohamed (although the Austrian Supreme Court is quoted as using that term).  Nor does the Court require other countries to follow Austria’s lead: although it refers to positive obligations to protect freedom of religion, it does not spell out what they are, for the obvious reason that the applicant was not arguing a failure by Austria of any positive obligations in this case.

Thirdly, as my summary of the judgment sets out, there’s nothing unusual or exceptional about the underlying legal reasoning in the Court’s approach here. It’s applying its long-standing doctrine related to the balance between freedom of expression and freedom of religion. This is indeed an area where the “margin of appreciation”, giving considerable deference to States’ choices, has long been applied widely, although States do not always win. (Have a look at the cases linked to in the judgment, or the summary in this fact sheet, for more details: note that there are judgments arguably deferential to Christianity, not just Islam).

Finally, on the same point, it should be noted that the Court, sometimes criticised for being activist, is in this case conversely criticised for being deferential to States. The judges leave the remedy for those who criticise the law in Austria (or similar laws elsewhere) as the political process in Austria, rather than the remote court in Strasbourg. But those who usually criticise foreign judges’ interference now seem disappointed that those foreign judges didn’t interfere to effectively endorse their own criticism of Islam.

Assessment of the judgment

Although some of the Court’s critics seem to have misunderstood the context of the judgment, I would agree that there is a lot in the judgment to criticise. What I would question here is both the Court’s application of its “margin of appreciation” doctrine to the facts of this case, and its failure to reconsider that doctrine in general. On the first point, while I agree that the small fine is relevant, it’s odd that the Court however fails to consider the absence of any complaint by a Muslim organisation as such, given that its reasoning turns on the importance of the objective of ensuring religious peace. Its distinction between marrying one child and a preference for children in general comes across as sophistry. And its concern that anyone could have attended the political seminar overlooks the broader context of an Internet full of critics of Islam: if the problem is a forest, does it make sense to prosecute an individual tree?

On the Court’s failure to reconsider its doctrine in general, there’s a procedural point here: the judgment was delivered by a small Chamber of few judges, not a Grand Chamber with many more; and only the Grand Chamber has the authority to reconsider long-standing jurisprudence. (The applicant can request the Grand Chamber to review this Chamber judgment). But I would hope that the Grand Chamber has the opportunity to do so, and uses it. Here’s why.

As a confirmed agnostic who attends Catholic mass, I can see the conflict of rights here in personal terms. Faith is at the core of many people’s personal identity. It inspires the spiritual, explains the inexplicable, and consoles the inconsolable; it provides a community to celebrate the breaking of fasts, the liberation from slavery or the miracle of resurrection. It celebrates birth, codifies life, and commemorates death – yet offers hope of immortality.

Yet I can see why some wish to condemn one faith, or all faiths. There’s no shortage of abuse, discrimination, persecution, hatred or violence based on religion. And some generally believe that all religions are nonsense: that in a scientific age, with lots of suffering before death that we should be concerned about, it’s long past time to go cold turkey on the opiate of the masses.

My answer to the potential conflict of rights is to respect others’ right to believe what they want to believe (or not believe). But others have a different view. And freedom of speech is not just the freedom to calm people down: it’s also the freedom to wind people up, turn people on, or piss people off.

The flaw with the Court’s traditional case law is that it places too much priority on the right not to be offended, and not enough on the right to offend. Indeed, the Court quotes – but does not explicitly follow – a report from the Venice Commission, which recommends that States should abolish the offence of blasphemy or religious insult (the latter, with added elements, seems to be the basis of its recent judgment) and rely solely instead on incitement to hatred. I would go further still, and criminalise only incitement to hatred which advocates violence or other criminality.

So “Muslims are vile; let’s attack them” should be criminal; as should the attack itself, or the criminal damage entailed by a swastika drawn on a synagogue. I take the point that swastikas don’t draw themselves, and that if someone merely says “Muslims are vile”, his listeners may well add “let’s attack them” in their own minds and act on it. But there needs to be a line drawn somewhere; a whole range of statements could trigger a potentially violent listener, so we have to exercise some judgement as to which statements should reasonably be criminalised.

Moreover, incriminating many critics of Islam (or others considered intolerant) who don’t directly advocate violence doesn’t solve the problem of intolerance; it fuels it, allowing those critics to parade themselves as free speech advocates, or even martyrs.  Prosecuting them for non-violent statements simply attracts more attention to their views. (This is also an answer to the valid “it’s easy to advocate freedom of speech when you’re not the target” arguments).

Two important qualifications, though. First of all, the freedom of expression is not a right to a platform: there’s no legal obligation for the mainstream media or social networks, for instance, to give any particular view uncritical attention, or any attention at all. Secondly, freedom of expression works both ways (that’s rather the point): it’s equally applicable to those who want to mock or react to Islamophobes or their ilk, and criticising someone’s views is not the same as “silencing” them. There’s nothing quite as pathetic as (for instance) the sight of the supporters of Trump’s crassness and intolerance crying crocodile tears in reaction to a comedian making a joke about his press secretary’s eye-shadow.

Ultimately, though, the problem with banning non-violent criticism of religion isn’t just about tactics; it’s about the paradox of intolerance. It’s logically impossible to preach tolerance while saying that dissenting views should be banned – even if those views are not very tolerant themselves. Fundamentally, a good idea – whether religious or secular – should speak for itself, not shut its critics up.  

Barnard & Peers: chapter 9

Photo: Islamic Centre, Vienna; photo credit: Wien.info