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ECHR - Business and Human Rights - Data Protection

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Buzadji v Moldova – requirements for ordering pre-trial detention

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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.

Facts:

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.

Law:

 

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

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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.

 

Facts

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)

 

Law

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.

 

 

Judicial review of seizures – Prezhdarovi v Bulgaria

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In Prezhdarovi v Bulgaria, the European Court of Human Rights has reiterated the importance of an effective judicial review of seizures of assets. It stated that a retroactive review by a judge after a seizure may in principle counterbalance the failure to obtain a judicial warrant prior to the seizure. However, this requires the retroactive scrutiny by a judge to provide sufficient safeguards against arbitrariness.

Facts

The applicants had established a computer club. Customers could use computers and play computer games installed on them for a fee. The first applicant, who was the owner of the club, paid licensing fees to the companies owning the software and computer games. In 2004, the contract expired and the first applicant failed to renew it.

Shortly after, a criminal complaint was lodged on the grounds that the applicants allegedly continued to use the software and sold illegal copies of computer games. The prosecutors ordered the police to investigate whether software was used and distributed in the applicant’s club in breach of the criminal procedure code. The prosecutor also ordered the police to secure evidence by seizing computers should the investigation lead to the conclusion that software was used and sold in an illegal manner.

Police officers visited the premises in which the applicant had run the computer club. The police officers ascertained that computer games were installed on the computers. There were people present and the cash till was open. When the applicants failed to produce invoices, receipts or other documentation proving that they were using the games legally, the police officers concluded that there was a sufficient suspicion of illegal activities and seized the computers.

Pursuant to article 135 of the Bulgarian Criminal Procedure Code as it stood at the relevant time, in principle a warrant was required for seizures. As an exception, police officers could carry out seizures in pressing circumstances, in which case the seizure had to be approved by a judge within 24 hours.

On the same day, a judge approved the seizure. The judge gave a brief description of what had happened. He pointed out that there had been pressing circumstances and that an immediate seizure had been the only available means to secure the evidence.

One day later, the first applicant lodged an application with the District Court requesting not to approve the seizure of the computers. He pointed out that there had been no pressing circumstances. He also claimed that the computers contained personal letters and personal information about friends and clients. The request was rejected as inadmissible on the grounds that the seizure had already been approved by the court and that this decision was not subject to appeal.

Both applicants filed a request with the prosecution to return the computers. The stated that the computers contained personal data and that they needed them to run their business, a typewriting service. The prosecutor denied the motion.

The first applicant sought judicial review pointing out that the computers contained personal data. The competent court rejected the request. It pointed out that the computers were currently being examined by experts and could not be returned. The Court did not deal with the applicant’s argument that the computers contained personal information and were needed for his business.

The applicant was convicted for illegal distribution of computer games.

Law

The European Court of Human Rights scrutinized the seizure and the retention of the computers in light of article 8 ECHR (right to private life).

It was not in dispute between the parties that the seizure and retention of the computers amounted to an interference with the right to private life. Consequently, the European Court of Human Rights went on to examine whether the interference had been based on a law. The Court reiterated that this requirement did not only refer to the existence of a basis in domestic law but also entailed qualitative standards for the law in question. In particular, the provision on which the interference was based had to be accessible, sufficiently clear to make the scope of its application foreseeable and it had to be in keeping with the rule of law.

The European Court of human rights examined whether the legal provision governing the seizure had been compatible with the rule of law. It underscored that this requirement meant, in the context of seizures, that the domestic law afforded sufficient safeguards against arbitrariness.

The Court expressed doubts that there had actually been pressing circumstances which permitted the immediate seizure pursuant to Bulgarian law. It pointed to the fact that the visit to the premises of the applicants’ business had taken place three weeks after the criminal complaint, which should have given them enough time to collect additional information, institute criminal proceedings and obtain a judicial warrant first.

The Court pointed out that a lack of judicial review prior to the seizure could in principle be counterbalanced by the availability of a retrospective review. However, it came to the conclusion that the scrutiny of the measure by a judge had not provided sufficient safeguards against arbitrariness. It stated that the judge had only briefly described the factual situation leading to the seizure, cited the relevant provision and claimed that there had been pressing circumstances – without any further elaboration on why immediate action by the police had been necessary. Also, the judge had not dealt with the applicants’ assertion that the computers contained private information and that they were needed for their business at all. Due to this formalistic approach and the failure to examine arguments advanced by the applicants, the judicial review did not provide a sufficient safeguard against arbitrariness in the Court’s view.  It found therefore a violation of article 8 ECHR.

 

Procedural requirements for the deprivation of legal capacity – Ivinovic v Croatia

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In Ivinovicv Croatia, the European Court of Human Rights has dealt with procedural aspects of the decision on a partial deprivation of legal capacity.

Facts:
The applicant had suffered from cerebral palsy since her early childhood. In 1968 she had been deprived of her legal capacity, but in in 1979 it had been restored.

In 2009, the local Social Welfare Centre instituted proceedings before the Zagreb Municipal Court aimed ad depriving the applicant partially of her legal capacity. It relied on statements of a social worker and the applicant’s son. Allegedly, the applicant had undergone personality changes following her hospitalization and surgery. She had stopped making payments on the mortgage for her apartment, entailing the risk of her eviction, had not paid utility bills and started buying large amounts of phone vouchers. The Social Welfare Centre submitted bills and final demands for payments in support of their request.

The Social Welfare Center appointed an employee of the center as a legal guardian to represent the applicant during the procedure; in addition to that, the applicant retained a lawyer of her own choosing. The employee of the Social Welfare Center representing the applicant consented to the (partial) deprivation of the applicant’s legal capacity during the proceedings. The applicant, on the other hand, objected. She pointed out that she had fallen behind with the bills due to her hospitalization. She had asked her son to withdraw money from her account and to pay the bills for her, but he had failed to do so.

The competent court commissioned a psychiatric report. The psychiatric expert tasked to carry out the examination found that the applicant was not entirely able to look after her needs and that she might jeopardize the interests of others. In the oral hearing, the psychiatrist endorsed the report. The court partially deprived the applicant of her legal capacity. The applicant appealed against this judgment. She advanced the argument that main reason for the court to deprive her partially of her legal capacity had been her allegedly lacking ability to handle her financial matters. In this regard, the court had heavily relied on the expert report by the psychiatrist. However, in her opinion the expert had not had neither sufficient insight into her financial matters nor the requisite expertise to come to these conclusions.  

The appeal court rejected the appeal. It relied on the psychiatric report and added that the applicant’s hospitalization could not explain the applicant’s debts, since they, according to the dates on the bills, had been over a period lasting longer than the applicant’s stay in hospital.

After her complaint was rejected by the Constitutional Court, the applicant submitted an application to the European Court of Human Rights. She alleged that the way in which the proceedings had been conducted infringed on her rights under article 8 ECHR (right to private life)

Law
The European Court of Human Rights reiterated that the deprivation as well as the partial deprivation of legal capacity amounted to an interference with a person’s private life.

It pointed out that article 8 ECHR did not contain any explicit procedural requirements. Still, the procedure in which the decision on the interference had been made had to meet certain standards so as to provide adequate protection of the interests protected by article 8 ECHR. The Court stated that it was not its task to substitute its own judgment for the judgment of the domestic courts and that states enjoyed a certain margin of appreciation when securing the rights enshrined in the Convention. However, this margin was limited where decisions affecting a person’s private autonomy were at stake. Domestic courts dealing with the total or partial deprivation of a person’s legal capacity were required to adduce sufficient reasons for their decisions which reflected that all factors to be considered for the decision had been pondered carefully.

The European Court of Human Rights pointed out that the domestic courts had heavily relied on the psychiatric reports when deciding to deprive the applicant in part of her legal capacity. While it recognized the important role of expert reports, it reiterated that it was for the judge to make the decision, not for the expert. It was also for the judge to decide whether a far-reaching measure such as the (partial) deprivation of legal capacity was called for or whether less intrusive means could be sufficient. The judge had to assess this bearing in mind all circumstances of the case.

The Court pointed out that the domestic courts had chiefly relief on two reasons: the danger to the applicant’s health and her alleged inability to make sound financial decisions. It stated that it had not been established during the domestic proceedings that the applicant did not take care of her health. With regard to the applicant’s financial situation, the European Court of Human Rights found that the Croatian courts had not established all relevant facts. The appeal court had simply referred to the bills and stated that the debts had been incurred during a longer period than the applicant’s hospitalization. It had never ascertained during which times exactly the utility bills had remained unpaid; also, it had never scrutinized the applicant’s statement that her son had taken money from her account.

The Court also criticized that the domestic courts never had dealt with the question whether less intrusive means than the partial deprivation of legal capacity could have achieved the aim of protecting the applicant.  

Finally, the European Court of Human Rights pointed out that the Social Welfare Center had appointed one of its employees as the legal representative of the applicant. Thus, the person to protect the interests of the applicant had at the same time been subordinated to the institution which had filed the request, which did not guarantee and independent and effective representation.

In view of these procedural shortcomings, the European Court of Human Rights found a violation of article 8 ECHR.