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ECHR - Business and Human Rights - Data Protection

Article 8 ECHR

Michel Platini does not score at the European Court of Human Rights

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The European Court of Human Rights has declared inadmissible an application submitted by former football player Michel Platini. The case concerned the disciplinary sanctions imposed on Platini by the Ethics committee of the FIFA and confirmed by the Court of Arbitration for Sport (CAS)

Facts

Platini had supported Joseph Blatter’s campaign to become President of FIFA in 1998. After Blatter had been elected, Platini started working for the FIFA as an advisor. He resigned from that post when he was elected as a board member of UEFA. He later also became vice-president of the FIFA.

In 2007, Platini demanded that his time working as an advisor be counted in for the calculation of his retirement entitlements. The FIFA acceded to the request.

In 2011, he sent an invoice over 2 Million Euros to the UEFA, stating the sum had been agreed upon orally as an additional salary on top of the salary fixed in his written contract. The FIFA paid the requested sum.

In 2015, the Swiss prosecution service instigated an investigative procedure against Platini (which is still pending). The Investigatory Chamber of the Ethics Committee of the FIFA initiated disciplinary proceedings regarding breaches of the Code of Ethics against Platini. The Adjudicatory Chamber of the FIFA Ethics Committee suspended the applicant from all activities related to football for 90 days.

After the investigation had been finalised, the Adjudicatory Chamber ruled that Platini had violated several provisions of the Code of Ethics. It referred, inter alia, to a provision according to which employees were not allowed to accept payments from ‘third parties’ It imposed a fine of 80.000 Swiss Francs on him and suspended him from all activities related to football for a period of eight years.

Platini appealed against this decision to the Court of Arbitration for Sport (CAS) in Lausanne. He contended, among other arguments, that the provision prohibiting payments from ‘third parties’ did not refer to payments made by the FIFA itself. He also called into question the proportionality of the sanctions that had been imposed on him.

The CAS reduced the fine imposed on him and shortened the period of suspension from eight years to six years.

Platini appealed to the civil section of the Federal Court of Switzerland. He stated that the CAS had rendered an arbitrary judgment, because it had based its decision on factual findings which were obviously not supported by the case file and because it had committed obvious errors in law.

The Federal Court held that it had jurisdiction to entertain the lawsuit. However, it stated that is competence was limited to examining whether the CAS had established facts which were manifestly contrary to the facts emerging from the case file and whether there were obvious violations of the law or of the principle of fairness. Both was, according to the Federal Tribunal, not the case.

Legal Assessment

Jurisdiction ratione personae

Regarding the admissibility of the application, the Court examined whether the Convention was applicable ratione personae. The ECHR governs in principle the relationship between states and persons within their jurisdiction. It does not directly apply to relationships between private individuals (although states may have a positive obligation to ensure that the Convention rights are respected when private individuals engage with each other, too). Since the FIFA is a body governed by Swiss private law, the question arises whether the Court is competent to examine procedures conducted by organs or bodies of the FIFA.

The Court pointed out that the responsibility of the Swiss state was engaged, since Swiss law provides for the enforcement of awards by the CAS and since the Federal Court of Switzerland is – albeit to a limited extent – competent to examine them when deciding upon their recognition. This is in line with the Court’s previous judgment in Mutu and Pechstein v. Switzerland.

Exhaustion of domestic remedies regarding article 6 ECHR

Among the several articles of the Convention Platini relied on was the right to a fair trial pursuant to article 6 ECHR. He questioned the impartiality of the CAS, contended that the rights of the defence had been unduly restricted and that he had been denied access to the case file.

The Court pointed out that applicants had to exhaust domestic legal remedies before submitting an application to the European Court of Human Rights. According to the Court’s long-standing jurisprudence, this does not only mean that the applicant has to avail himself of effective legal remedies. It also implies that he must address the legal point on which he bases the application at least in substance before domestic courts.

The Court’s jurisprudence in that regard is not entirely consistent. While the Court has stated many times that applicants are not required to refer to a specific article of the Convention to exhaust legal remedies, it has at times declared applications inadmissible on the grounds that the applicant had failed to rely on the article in question and on the pertaining jurisprudence of the Court in their pleading before domestic courts. This has been especially the case with applications concerning states which have incorporated the ECHR into their own legal system (see for example Budimir v. Croatia). On the other hand, the Court is sometimes quite generous regarding the requirement that a legal point has to be addressed in substance on the domestic level. For example, in Gestur Jonsson and Ragnar Halldor Hall v. Iceland, the Court considered it sufficient that the applicants had addressed the issue under article 7 ECHR in substance in their oral pleadings before the Supreme Court (the case was referred to the Grand Chamber).

The Court pointed out that Platini had not even in substance contended that article 6 had been violated in his pleadings before the Federal Court of Switzerland. Therefore, it declared the application inadmissible regarding this complaint.

Alleged violation of article 7 ECHR

The applicant also relied on article 7 which prohibits the retroactive application of laws in criminal matters. He submitted that the CAS had applied a version of the Code of Ethics of the FIFA which had not been in force at the time when he had accepted the payment.

The Court pointed out that article 7 referred to criminal offences. It stated that the term ‘criminal offence’ had to be interpreted autonomously. Referring to its case law, the Court stated that disciplinary sanctions such as the ones imposed on Platini could not be considered as criminal convictions, because they were measures taken against a member of an organisation comprised of a comparatively small group of persons, according to rules adopted by that organisation. Thus, according to the Court, the disciplinary sanctions did not amount to criminal convictions.

Alleged violation of article 8 ECHR

Finally, Platini had submitted that the disciplinary sanctions imposed on him violated his right to respect for private life pursuant to article 8 ECHR.

The European Court of Human Rights stated that the notion private life was a broad term not susceptible to exhaustive definition. Among the many aspects it encompassed was the possibility to develop and to interact with other persons. In that regard it could also be applicable to professional activities. Since the applicant had dedicated his entire professional life to football and was now banned from all activities in that field, the protection afforded by article 8 ECHR was engaged.

Furthermore, the court pointed out that the been imposed on Platini had to be considered from the perspective of positive obligations of the state to ensure the right to respect for private life even in the relationships among private individuals. A certain margin of appreciation had to be afforded to the state. It concluded that the CAS had cited sufficient reason for its decision to ban Platini. There Federal Court of Switzerland had confirmed the decision rendered by the CAS providing plausible and convincing reasons.

For that reason, the court stated that article 8 ECHR had not been violated.

It declared the application inadmissible as manifestly ill-founded.

Article 8 ECHR and the ‘right to be forgotten’ – M.L. and W.W. v. Germany

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For all the discussion about the General Data Protection Regulation, it should not be forgotten that article 8 ECHR encompasses important aspects of data protection, too. The European Court of Human Rights has developed a large body of case law in that regard. The recent judgment in M.L. and W.W. v. Germany adds to this jurisprudence.

Facts

The applicants had been convicted to lifelong imprisonment for murdering the popular German actor Walter Sedlmayer. The conviction was entirely based on circumstantial evidence and the applicants had protested their innocence until the end. After the judgment became final, they had attempted several times to re-open the proceedings, presenting what they deemed new exculpatory evidence. On at least one occasion, they had informed the media about their efforts to have the judgments against them quashed. In 2007 and 2008, they were released from prison. 

In 2000, the German radio station ‘Deutschlandradio’ published a report about the murder. The full names of the applicants were mentioned. A transcript of the report was available on the website of the radio station until at least 2007. 

The applicants initiated civil proceedings against the radio station. They demanded that their names be anonymized and their personal data removed from the transcript. After the first two instances had granted their request, the Federal Court of Justice ruled in favor of the radio station. It pointed out that a balance had to be struck between the applicants’ reputation and personality rights on the one hand and the right to freedom of expression exercised by the radio station on the other hand. The interest of a convicted criminal not to be confronted with his crime anymore grew stronger over the time. In particular after the person in question had served his sentence in full it was not easy to justify to publish his name. However, the right to be forgotten was not absolute. Freedom of expression had to be taken into consideration, too. Factors to be considered when balancing these considerations were the gravity of the interference with the reputation, the way in which the perpetrators were portrayed as well as how widely the publication was distributed. On the basis of these factors, the Federal Court of Justice ruled that publishing the personal data in the archive was lawful.

It stated that the crime in question had attracted a lot of public attention. Also, the report had not only portrayed the applicants as perpetrators but had also provided information on their version of the facts. Finally, the archive on the website of ‘Deutschlandradio’ was not very widely read. Thus, the freedom of expression had to prevail over the protection of the applicants’ personality rights. 

The applicants also initiated separate proceedings in regard to a publication on the website of German news magazine ‘Der Spiegel’. ‘Der Spiegel’ had published on its website a so called ‘dossier’ under the title ‘Walter Sedlmayer – assasination with a hammer’. The ‘dossier’ contained a collection of articles pertaining to the crime and the ensuing criminal procedure. One of these articles contained the applicants’ name and information on their family background. In addition to that, there were photos showing the applicants in court and next to the murdered actor. 

The Federal Court of Justice deemed these publications lawful, too.

Finally, the German newspaper ‘Mannheimer Morgen’ featured an article in which the applicants’ names were mentioned. Again, the Federal Court of Justice held that the publication was lawful.

The applicants submitted an application to the European Court of Human Rights.

Legal assessment

General remarks

The Court pointed out that the notion ‘private life’ was a broad term not susceptible to exhaustive definition. It could also encompass various aspects of a person’ identity, among them the legitimate expectation that certain information regarding a person would not be disseminated. If information about a person was spread contrary to legitimate expectations this person harbored, this might interfere with the right to private life. Article 8 ECHR could, however, not be invoked to have information or reports removed from the public domain if the spreading of this information was a foreseeable reaction to a person’s own behavior. 

The Court stated that a balance had to be struck between the applicants’ legitimate interest that their right to private life be protected and the freedom of expression exercised by the media concerned. The Court underscored the essential role free media played in a democratic society. it was also a corollary task of the media to put information at the disposal of the public by storing it in publicly accessible archives. This task was, if not the main duty of the media, of certain importance.

The European Court of Human Rights pointed out that national authorities enjoyed a certain margin of appreciation when striking the balance between the respect for private life and the freedom of expression. If national authorities weighed the competing interests in accordance with the criteria developed in the Court’s jurisprudence, strong reasons were required for the Court to substitute their judgment with its own. 

Difference between media and search engines

The Court pointed to the difference between search engines and the publication of information in the internet through media: The media made the information available, while search engines only contributed to their distribution (or amplified them). Thus, the activity of media concerned the core of freedom of expression, which was not the case for search engines. Consequently, the process of striking the balance between the protection of private life and the interest of persons disseminating information could lead to different results in regard to media and search engines respectively.

The Court made reference to the judgments of the European Court of Justice in the matter ‘Google Spain’ , in which the European Court of Justice had dealt with the ‘right to be forgotten’. In this matter, an individual had demanded from a Spanish newspaper as well as from Google to remove information about him in connection to a insolvency or to ensure that this information was not shown in search results when internet users ‘googled’ his name.  The European Court of Justice pointed out that the  justification of the request might have to be assessed differently in regard to the newspaper and the search engine, since the former could invoke freedom of the press, the latter not. 

Criteria developed in the Court’s jurisprudence

Contribution to a debate of public interest

The Court pointed out that the murder of the actor Walter Sedlmayer and the ensuing criminal trial had attracted a lot public attention. This held true not only for the initial proceedings but also for the attempts to achieve a re-opening of proceedings. The Court endorsed the balancing exercise undertaken by the Federal Court of Justice. According to the Court it did not make a difference that the applicants only demanded an anonymization of the reports, not their deletion. The removal of personal data constituted an interference with the freedom of expression, too.

Notoriety of the applicants and topic of the report

The European Court of Human Rights pointed out that the German courts had not dealt with this criterion. It stated that the applicants had not been known to the public prior to their crime; their notoriety had been diminished in the course of time but not disappeared completely.

Previous conduct of the applicants

The Court pointed out that the applicants had turned to the media to inform them about their attempts to have the proceedings re-opened and the conviction overturned. Thus, their interest in remaining anonymous was diminished.

Form, content and consequences of the publication

The Court noted that most of  the articles had been objective. Also, the facts that the applicants protested their innocence and had tried to a achieve a re-trial had been mentioned, too. While some articles published by ‘Der Spiegel’ had been questionable, all reports were within the confines of what was protected by freedom of expression.

Photos

The Court briefly dealt with the photos that had been published. It stated that the pictures were 13 years old which rendered it less likely that somebody was going to recognize the applicants on the basis of these photos.

The European Court of Human Rights concluded that the German courts had stayed within their margin of appreciation when declaring the publication lawful. The Court did not find a violation of article 8 ECHR.

 

Kafala and adoption in light of article 8 ECHR – Chbihi Louboudi and others v. Belgium

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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’.

Facts:

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.

Law:

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

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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.

Facts:

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.

Law:

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.