Holger Hembach contributed as an international expert to a briefing paper on ‘Ukraine’s legal debate on a right to armed self-defence’. During the discussion about the new constitution of Ukraine, a group of citizens filed a petition to entrench a right to bear fire arms in the constitution. Democracy Reporting International, a Berlin based NGO, commissioned and published a briefing paper which is to provide information on European practices in regard to the right to possess weapons and on legal aspects of the issue.
Allegation of guilt in the reasoning of a judgment despite acquittal – Cleve v. Germany
In Cleve v Germany, the European Court of Human Rights has elaborated on the scope of the presumption of innocence. It clarified that article 6 para 2 does not only apply to the operative part of a judgment – to the decision whether or not the defendant is found guilty – but also to its reasoning.
The applicant was the father of a daughter. After he had split with his wife, his former spouse laid information with the police that the applicant had sexually abused his daughter immediately. The daughter was questioned by police and a psychological expert was commissioned to assess the credibility of her statements.
The applicant was charged with sexual abuse of children and sexual abuse of persons entrusted to him for upbringing. After five hearings, the Regional Court Muenster acquitted him of all charges. In the reasoning, the Court pointed out that the applicant had denied the charges and had only been incriminated by his daughter. However, the Court had not found her testimony credible to a degree sufficient to justify a conviction. When outlining the reasons leading it to this conclusion, the Regional Court Muenster stated:
“… To sum up, the Chamber does not discern any signs of suggestive influence.
Therefore, the Chamber assumes, in sum, that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car. Nevertheless, the acts could not be substantiated, in terms of either their intensity or their time frame, in a manner that would suffice to secure a conviction. The inconsistencies in the witness’s testimony were so marked that it was impossible to establish precise facts.”
The judgment became final. The applicant filed a constitutional complaint to the Federal Court of Constitution in which he claimed that the reasoning of the judgment violated the presumption of innocence, because it stated that he had carried out sexual assaults on his daughter. The Constitutional Court declared the complaint inadmissible and the applicant lodged an application with the European Court of Human Rights.
The Court examined whether the reasoning of the judgement constituted a breach of the presumption of innocence entrenched in article 6 para 2 ECHR, which reads as follows:
‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’
The German Government argued that the presumption of innocence did not apply to the reasoning of a judgment. It contended that article 6 para 2 only required that a defendant be acquitted if not proved guilty beyond reasonable doubt – which was exactly what the German court had done. The presumption of innocence did not impose any boundaries on a municipal court when providing reasons for the acquitting judgment.
The European Court of Human Rights rejected this argument. It pointed out that article 6 para 2 generally prohibited all agents of the state to treat someone as guilty before being convicted. While this became relevant before the judgment in most cases, there was no reason to exempt the judgment as such. Therefore, the presumption of innocence applied in principle to the reasoning of a judgment.
The Court stated that it hinged on the language employed in a given case whether the reasoning of a judgment violated the presumption of innocence. It conceded that a court had the right to address remaining suspicions or express doubts in the reasoning of a judgment. However, it was not allowed to state that a defendant, who was acquitted, had committed a criminal offence. The German court had done exactly that. It had stated that the applicant had sexually assaulted his daughter. Therefore it found that the presumption of innocence had been violated.
The European Court of Human Rights pointed to the possible repercussions of this statement, for example for proceedings regarding legal custody or civil actions for compensations.
The German version of this post can be found here
Kafala and adoption in light of article 8 ECHR – Chbihi Louboudi and others v. Belgium
In Chbihi Louboudi and others v. Belgium, the European Court of Human Rights has dealt with the recognition of a ‘kafala’, a traditional Islamic form of adoption, in light of article 8 ECHR. It has held that the right to respect for family life does not require signatory states to grant an adoption if a child has been placed in the custody of other persons by a ‘kafala’.
Three applicants had submitted applications to the European Court of Human Rights. One of them was a girl from Morocco, the others were her Uncle and his spouse. The girl’s parents had agreed with the second and the third applicant that they would take care of the girl and raise her like their own child in Belgium. The agreement had been drawn up in form a ‘kafala’, a traditional form of adoption under Islamic law.
The first applicant had traveled to Belgium and had started living with the second and the third applicant. The second and the third applicant sought to adopt her; however, their request was rejected in two sets of proceedings by final judgments.
The third applicant only had a temporary permit to stay in Belgium, which was extended on a regular basis. For fear not be able to return to Belgium, she had not participated in two school trip abroad; she had also suffered from anxiety on account of her precarious situation and had felt embarrassed towards her classmates and friends.
The applicants claimed that by refusing to grant the adoption Belgium had violated its violations under the ‘right to respect for family life’ limb of article 8 ECHR. In addition to that, the third applicant – the girl – submitted that Belgium’s failing to provide her a permanent permit to stay constituted a violation of her right to private life under article 8 ECHR.
The Court stated that the case fell within the scope of article 8 ECHR. It reiterated its long standing jurisprudence to the effect that family life did not require the existence of biological parent-child relationships. Whether persons entertained family life had to be assessed on the basis of emotional and social ties between them. Belgium had contended that the situation of the applicants had to be treated differently, because the third applicant still maintained contact and close relationships with her biological parents. The Court rejected this argument.
It turned to the question whether Belgium had been under a positive obligation stemming from article 8 ECHR to grant the desired adoption. The Court pointed out that a ‘kafala’ was not recognized by Moroccan law; it also stated that the refusal of the adoption had not prevented the applicants from maintaining their family life, so that it was hard to see why it would constitute a violation of the right to family life. Therefore, the European Court of Human Rights found that there had been no violation of article 8 ECHR in its ‘family life’ limb.
With regard to the complaint that the failure to grant her a permanent permit to stay violated the third applicant in her right to private life, the Court stated that it could see that the situation in which the applicant found herself was distressful. However, it pointed to its long-standing jurisdiction that article 8 ECHR did not confer a right to stay in a certain country or to obtain a permission to stay in a country of one’s choosing. For this reason, the Court held that there had been no violation of the right to private life either.
Legal provisions regarding child birth in light of article 8 ECHR – Dubska and Krejova v. Czech Republic
In Dubska and Krejova v. Czech Republic, the European Court of Human Rights has dealt with the implications of article 8 ECHR for the legal framework governing medical assistance during births and home births. It held that legal provisions which made it nearly impossible for women to give birth at home did not infringe the right to private life.
The Court had joined two applications. The first one had been submitted by a mother of two, who in essence complained that Czech laws had made it impossible for her to give birth to a child at home. The applicant had given birth to her first child without any complications. Following the birth, medical personnel in the hospital had urged her to undergo medical treatment she considered unnecessary. Also, she had spent more time separated from her child than she wanted to and was not released from the hospital as early as she desired. Due to these difficulties, she decided to give birth at home when she was pregnant with her second child. However, she was unable to find any midwife willing to assist her; her health insurance informed her that assistance during a home birth would not be covered. The applicant gave birth to her child at home without any professional assistance.
The second applicant had already given birth to two children at home with the assistance of midwives. The midwives had worked without any authorization from the state. When the applicant was pregnant with her third child, she decided to deliver at home again. However, she was unable to find a midwife willing to assist her because of the heavy fines which could be imposed on persons providing medical assistance without authorization.
In the Czech Republic, only a very small number of women give birth at home. The Medical Chamber regards home births as risky and considers them not in line with professional standards. Recommendations issued by the Ministry of Health state that newborns should, as a rule, not be released from hospital sooner than 72 hours after birth. According to statistics, the Czech Republic is among the countries with the lowest mortality rate in Europe.
The applicants complained that the legal framework in Czech Republic prevented them from giving birth at home, which amounted to a violation of their right to private life under article 8 ECHR.
The European Court of Human Rights pointed out that the issue fell within the scope of article 8 ECHR. It clarified that the question at hand was not whether the right to private life embraced a right to give birth at home, but rather whether it encompassed a woman’s right to decide herself on the circumstances and way in which she wanted to give birth. The Court reiterated its jurisprudence that private life is a broad concept which covers personal autonomy. It stated that giving birth had implications for the mother’s physical and psychological integrity and constituted a very intimate aspect of her private life. Thus, legal provisions to the effect that the applicants could not give birth at home constituted an interference with their right to private life.
The European Court of Human Rights went on to examine whether this interference was justified pursuant to article 8 para 2 ECHR. It found that the legal provisions which stated that medical assistance could only be provided by persons with the appropriate license and in possession of the necessary equipment were a sufficient legal basis. It also accepted that they served a legitimate aim, namely the protection of the health and life of mother and children during and after birth.
The European Court of Human Rights then turned to the question whether the interference was necessary in a democratic society. It pointed out that there was no consensus among Council of Europe member states on questions of home birth and health care during and after delivery. Also, regulation in this field required a lot of scientific data and expert advice. Since member states were best placed to obtain these, they enjoyed a wide margin of appreciation in this area. It stated that legislation on health care related to births had to respect the rights of the mother while being mindful of the interests of the newborn children as well. The Court found that the Czech authorities had duly balanced the competing interests at stake and come to conclusions which were within the state’s margin of appreciation. Accordingly, the European Court of Human Rights did not find a violation of article 8 ECHR.
Buzadji v Moldova – requirements for ordering pre-trial detention
In Buzadj v. Moldova, the European Court of Human Rights has yet again reiterated the requirements for judicial decisions ordering pre-trial detention. It underscored that any decision to deprive somebody of his liberty must be supported by sufficient and relevant reasons. Merely re-phrasing the legal provisions on pre-trial detention is not sufficient.
The applicant was the former director of a state owned company. In 2006, he had acknowledged a debt by the company in court proceedings. Following these proceedings, several investigative procedures were instigated against the applicant was well as against his sons. The prosecution office suspected that the applicant had defrauded the company or embezzled funds.
In the course of the investigation, the applicant was summoned several times to be questioned by the investigating authorities. He followed the summons on each occasion.
All investigative procedures were joined an in May 2007, the applicant was charged with fraud. On the same day the applicant was charged, the competent court upon request by the prosecution ordered pre-trial detention for a period of 15 days. It pointed out that the applicant was charged with an exceptionally serious crime and referred to the complexity of the case and the seriousness of the crime. It also stated that there were reasonable grounds to believe that the applicant could collude with other people – in particular his sons – to take a common position.
The applicant appealed against this decision. He argued that there was no evidence in the case file suggesting that he represented a flight risk and pointed out that he had family ties, a job and a residence in Moldova. He also submitted medical certificates stating that his health condition required treatment he could not obtain in pre-trial detention.
The competent court rejected the appeal. In its reasoning, it essentially repeated the reasons given by the lower court.
When the initially ordered period for pre-trial detention expired, the competent court extended it. It pointed out that in view of the ‘seriousness and complexity of the case and the need to protect public order’ it was premature to replace the pre-trial detention by another measure such as house-arrest. Upon appeal, the Chisinau Court of Appeal upheld this decision.
After the period for which pre-trial detention had been ordered had expired, the competent court extended the detention period again, in essence based on the same reasons it had already quoted. The decision was upheld upon appeal. Finally, in June 2007, the competent court accepted a request by the applicant and ordered house arrest instead of pre-trial detention. The prosecution appealed this decision and the Court of Appeal quashed it and ordered pre-trial detention.
After another extension of the pre-trial detention, the Court of Appeal ordered house arrest.
In total, the applicant had spent two-and-a-half months in pre-trial detention some 8 months in house arrest.
The European Court of Human Rights examined the case in light of article 5 paragraph 3 of the European Convention on Human Rights, which provides
Article 5 – Right to liberty and security
1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law (…)
3) Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
The Court reiterated that a person charged with an offense must always be released pending trial unless the state can show that there are sufficient and relevant reasons to justify the detention. While the court examining the necessity of pre-trial detention is not obliged to address every single argument advanced by the affected person in favour of his release, it must not disregard or treat as irrelevant facts which might be of importance of the question of pre-trial detention. The competent court must not confine itself to general and abstract reasons when giving reasons for ordering pre-trial detention.
The European Court of Human Rights pointed out that the domestic courts in Moldova had not examined any of the arguments advanced by the applicant. The domestic courts had repeated the wording of the criminal procedure code of Moldova without connecting the provisions to the particular circumstances of the case; the decisions had not been based on an analysis of concrete facts to be found in the case file, but rather on general and stereotypical considerations.
For these reasons, the Court found a violation of article 5 paragraph 3 ECHR.
Freedom of expression of employees – Matuz v. Hungary
In Matuz v Hungary, the European Court of Human Rights elaborated on extent to which journalists can invoke freedom of expression when criticizing their employer.
The applicant was a journalist. He had been employed with a state owned broadcasting company as a moderator of a talk show dealing with cultural life in Hungary. At the same time, he was the chairman of a trade union of journalists which was active in the broadcasting company.
The applicant’s contract obliged him not to disclose any information he had obtained in relation to his position and stipulated that the applicant be dismissed for any breach of the confidentiality clause.
A new cultural director was appointed. The applicant as well as the editor in chief of the TV show he was hosting complained to the president and to the board of the broadcasting company about actions of the cultural director which they perceived as censorship. A report about the letter by the editor in chief was published in an online-publication and the Hungarian Union of Electronic Journalists called upon the board of the broadcasting company to end censorship.
In 2004, the applicant published a book which contained extracts from interviews which had not been broadcast in the program, an exchange of letters with the cultural director in which changes to the program were discussed which the cultural director had suggested and the applicant’s opinion on censorship within the program.
Shortly after the publication of this book, the applicant was dismissed on the grounds that he had breached the confidentiality clause in his employment contract. The applicant challenged this dismissal before domestic courts but his claim was rejected in all instances.
He filed an application with the European Court of Human Rights, advancing the argument that the dismissal constituted a breach of his right to freedom of expression (article 10 ECHR)
The Court examined whether the applicant’s right to freedom of expression had been interfered with. The Hungarian government had argued that no interference had taken place since the book had been published and the information contained therein had become accessible to the public.
The European Court of Human Rights rejected this argument stating that the applicant’s had been dismissed because of his exercising his right to freedom of expression. It went on to examine whether the interference had been justified. It briefly concluded that there had been a sufficient legal basis for the dismissal in the Hungarian Labour Code and that the interference had served a legitimate aim, namely the protection of the reputation of others.
The Court went on to examine whether the interference had been necessary in a democratic society. While reiterating that freedom of expression was of paramount importance in a democratic society, it also stated that employees owe their employers a certain measure of loyalty and restraint, which makes restrictions of the freedom of expressions in principle permissible. The quality of judicial review was of particular importance when balancing these two considerations. Relevant factors to take into consideration are
- The public interest in the disclosed information
- The authenticity of the information disclosed
- The damage caused by imparting the information (if any)
- The motive actuating the disclosure of information
- Whether the disclosure of information was the last resort
- The severity of the sanction imposed
The European Court of Human Rights stated that there was a public interest in information about possible censorship in a public broadcasting service. It pointed out that the accuracy of the information had never been contested. As to the damage, the Court noted that domestic courts had referred to damage to the reputation of the broadcasting company. It stated, however, that the information about possible censorship had already been made available by the Union of Electronic Journalists. The applicant had acted in good faith and disclosing the information to the public had been the last resort, because the applicant’s prior complaints to the Board of Directors and the President of the broadcasting company had not borne any fruit. The Court also pointed out that the dismissal of the applicant had been a severe sanction. Finally, the European Court of Human Rights attached importance to the fact that the domestic courts had dealt with the dispute from a purely contractual point of view, without giving any consideration to the aspect of freedom of expression. In view of these facts, the European Court of Human Rights concluded that there had been a violation of the freedom of expression as enshrined in article 10 ECHR.