TREBALL DE FI DE GRAU: “SIMULACIÓ DAVANT INSTÀNCIES JURISDICCIONALS INTERNACIONALS” THE EUROPEAN COURT OF HUMAN RIGHTS MOOT COURT
Jofre Bosch Buch Clara Fernández Albertí Miguel Garcia-Ruiz Verd Clara Serra i Baiget Elisabet Viñes Vila
Tutors: David Bondia Garcia Rosa Ana Alija Fernández
MOOT COURT COMPETITION 2013/2014 ‘’CASE OF ADAM v. EVRYLIA” Mr Adam (Complainant)
vs The Government of Evrylia (Respondent)
Submission for the Complainant
MOOT COURT COMPETITION 2013/2014 ‘’CASE OF ADAM v. EVRYLIA” Mr Adam (Complainant)
vs The Government of Evrylia (Respondent)
Submission for the Respondent
TABLE OF CONTENTS
Table of contents ........................................... .................................................................. .............................................. ...........................................1 ....................1 List of references references ........................................... .................................................................. .............................................. ...........................................2 ....................2 I. Conventions and Treaties ........................................... .................................................................. .......................................2 ................2 II. Jurisprudence Jurisprudence .............................................. ..................................................................... ............................................... ................................2 ........2 III. Secondary sources ........................................... .................................................................. .............................................. ............................ .....3 3 List of abbreviations ............................................. .................................................................... .............................................. ...................................3 ............3 Statement of facts .............................................. ..................................................................... .............................................. .......................................3 ................3 Legal pleading............................................ pleading................................................................... .............................................. .............................................. ......................... 4 I. Admissibility of the claim ............................................ ................................................................... .......................................4 ................4
1. Victim Status ............................................ ................................................................... ............................................... ................................4 ........4 2. Non-exhaustion of domestic remedies ............................................ ............................................................5 ................5 3. Compliance with the six-month time-limit.................................. ti me-limit......................................................7 ....................7 4. Lack of jurisdiction of the Evrylian Courts ............................................ .....................................................7 .........7 II. Statements of the alleged violations ........................................... .................................................................. ......................... 9
1. Paragraph 1 Article 10 ECHR ............................................. .................................................................... ............................ .....9 9 a. Violation of article 10 of the Convention concerning the freedom to impart and receive information and ideas............................................9 b. Violation of article 10 of the Convention on freedom of press.........10 2. Paragraph 2 Article 10 ECHR ............................................. .................................................................... .......................... ...13 13 a. Violation of article 10 for not meeting the three requirements for legitimate interference ............................................. .................................................................... .......................... ...13 13 b. Violation of article 10 of the Convention for not establishing proportionate measures................................................................ measures...................................................................... ......14 14 3. Violation of Article 6 ECHR ........................................... ................................................................... .............................. ......15 15 a. Violation of Article 6 (1) of the Convention .....................................15 .....................................15 b. Violation of Article 6 (3): (b) and (c)................................................17 c. Violation of the Article 6 (3) ........................................... .............................................................18 ..................18
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LIST OF REFERENCES
I. CONVENTIONS AND TREATIES
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Convention for the Protection of Human Rights and Fundamental Freedoms, (entered into force 3 September, 1953)
II. JURISPRUDENCE
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A, B and C v. Ireland [GC], no. 25579/05 Amuur v. France, France, 25 June 1996 D.H. and Others v. the Czech Republic, Republic, no. 57325/00 Dalban v. Romania [GC], Romania [GC], no. 28114/95 Delfi AS v. Estonia, Estonia, no. 64569/09 Demopoulos and Others v. Turkey (dec.) Turkey (dec.) [GC], nos. 46113/99 Engel and Others v. The Netherlands, Netherlands, Series A nº 22. Gorraiz Lizarraga and Others v. Spain, no. 62543/00 Handyside v. the United Kingdom, Kingdom, Series A no. 24. Ilhan v Turkey\[GC], Turkey\[GC], no. 22277/93, § 59, ECHR 2000-VII Jersild v. Denmark , Series A no. 298 Jersild v. Denmark , Series A no. 298 Kozacioglu v. Turkey [GC], Turkey [GC], no. 2334/03 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Territory, Advisory Opinion, I.C.J Reports 2004 (9 July 2004)
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Lingens v. Austria, Series A no. 103 Mantovanelli v. France Müller v. Switzerland , no. 41202/98 Perrin v. the United Kingdom (dec.), Kingdom (dec.), no. 5446/03, p.5, ECHR 2005-XI Ringeisen v. Austria, Austria, Series A no. 15 Sürek v Turkey (1) Turkey (1) no. 23927/94 and 24277/94 Tauira and 18 others v. France , no. 28204/95 Yassar Hussain v. the United Kingdom, no. 8866/04 Zana v. Turkey III. SECONDARY SOURCES
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Practial Guide on Admissibility Criteria, Research Division, European Court of Human Rights, 2011
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KILKELLY, URSULA. A practical guide to the implementation of article 8, European Convention of Human Rights. The right to respect for private and family life, 2003.
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VANDENHOLE, WOUTER. Judgements WOUTER. Judgements and Documents, Documents, Faculty of Law Universiteit Antwerpen, 2013.
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CASADEVALL, JOSEP. El JOSEP. El Conveni europeu de drets humans, el Tribunal d'Estrasburg i la seva jurisprudència, 2007.
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Rules of Court, European Court of Human Rights, July 2009
LIST OF ABBREVIATIONS
Art.
Article
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
ETD
Evrylian Telecommunications Directorate
STATEMENT OF FACTS
Victor Adam is a well-known and widely read journalist at the peak of his career. Being one true defender of both tolerance and freedom of speech he has reluctantly been involved in an ethnic controversy long time disputed among the two countries he is national from, Evrylia and Favonia. He is now facing a defamation accusation, and has a pending criminal proceeding above him, resulting from which, he has been deprived of the one direct media connection with his readers: His personal Blog, both denying them it’s lawful right of being informed as well as giving their opinion.
On 20 March 2010, Victor Adam posted an article on the blog platform Bbligg about the controversial life of some players of a favonian team and specifically about a famous football player’s life, David K. The latter, is a member of the Kroppa minority race in Evrylia, but this fact is never mentioned in the article. Even though, this particular topic was the object and source of comments of a hatred speech nature against 3
the player, which ends up unleashing a public dispute from the two different countries. The Evrylia Prosecutor has held Mr. Adam accountable for the omission of the diligence required in regards to his personal Blog.
This crimes are based on the grounds of his Blog’s public manifesto, created long before this event had been perpetuated, where in lieu of endorsing hate speech he encourages reasoned argument, promising not to censor the reader’s opinions. For thus, and for the time being, his Blog no longer exists in Evrylia, and as for his Phrendbook profile and a nd the Media forum group together with that both have been taken down. And because several misfortunes follow the football f ootball player’s life, Mr. Adam has been to date paying for them all, aside from the measures above mentioned.
Firstly, he has been fined each day until he deletes the posts for damages against that particular. Secondly having to publish an apology statement, which has already been done, following by an appeal being dismissed by the same Court of Evrylia who instead of protecting the media, sentenced that even if Mr. Adam wrote from Favonia, where no anti-hate speech legislation exists, his Blog’s posts should be deleted nonetheless.
LEGAL PLEADING
I. ADMISSIBILITY OF THE CLAIM
1. Victim Status
According to Article 34 of the Convention, Mr Adam is a victim of a breach of the Convention by the Evrylian State and its anti-hate speech legislation. It is submitted that the applicant has suffered a violation of several Convention rights. As it was hold by the Court in Amuur in Amuur v. France “the France “the word "victim" denotes the person directly affected by the act in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice”1.
On the one hand, Mr Adam is being deprived for the use of his Phrendbook profile and
1
Amuur v. Fran ce, ce , 25 June 1996, 36, Reports of Judgments and Decisions 1996-III
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has found his personal blog blocked. This sites were a mean to exert his professional activity, and therefore, his right to freedom of expression. The applicant does his job also through the media, and thus, he has been prived by the taken down of his profile and the blocking of the blog profile to do so.
On the other hand, Mr Adam has had an economic prejudice due to he had to pay damages to Mr K. It is clear the material harm caused to the applicant because of the order of the Evrylian court.
He is thus, a “direct victim” for the purposes of admissibility of an individual application in accordance to Article 34 of the Convention as he is directly affected by the actuations taken by the Evrylian courts. Mr Adam has been deprived of exercising his professional activity and has had, furthermore, to pay for an economic compensation.
According to the Court in Tauira v. France “in order for an applicant to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the loss which he considers he has suffered as a result of the alleged 2
violation” . There happens to be a direct link between the proceedings taken by the Evrylian State against Mr Adam and the prejudice caused to the latter.
2. Exhaustion of domestic remedies
On the basis of Article 35.1 ECHR the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
Mr Victor Adam, appealed the judgment on the basis of Evrylian courts’ lack of jurisdiction in order to delete a post from another country. The petition was dismissed
2
Tauira and 18 others v. France, France , no. 28204/95, p.130, ECHR 1995
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by the Evrylian Appeal Court and consequently, the first-instance-judgement of 20 June 2013 was confirmed.
The applicant followed a basic principle of the ECHR, according to the Court in Demopoulos and others v. Turkey, “ the rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this System of protection. States (...) and thus who wish to invoke the supervisory jurisdiction of the Court as concerns complaint against a State are thus oblige to use first the remedies provided by the 3
national legal System ”.
In order to demonstrate the Applicant’s compliance with the requirement of exhaustion of domestic remedies in Evrylia (Article 35.1 ECHR) it is necessary to point out that Mr Adam filed a complaint before the Appeal Court of Evrylia on the grounds of lack of jurisdiction of the First Instance Court, whose resolution forced f orced the applicant to delete a message on his blog.
The applicant fullfiled the rule of exhaustion of domestic remedies as it was hold in A, in A, B, and C v. Ireland: “under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack 4
the requisite accessibility and effectiveness ”. The main reason of this exhaustion is that an injunction from the Evrylian courts can only be appealed once, according to the provisions of the Criminal Code of Procedure concernint the interim measures taken during the criminal proceedings.
Also, the rule of exhaustion of domestic remedies “must be applied with flexibility and without excessive formalism” as established in Ringeisen in Ringeisen v Austria5. Moreover, in the case Kozacioglu case Kozacioglu v. Turkey, Turkey , the Court stated that “the rule exhaustion is not absolute nor capable of being applied automatically”, and it is essential to have regard to the circumstances of the individual case6. This means, in particular, that the Court “must 3
Demopoulo s and Othe rs v. Turkey (dec.) Turkey (dec.) [GC], § 69 nos. 46113/99
4
A, B and C v. Irela nd [GC], no. 25579/05, §142, ECHR 2010
5
Ringeisen v. Au stria 22 June 1972, § 89, Series Series A no. 15
6
Kozacioglu v. Turkey [GC], Turkey [GC], no. 2334/03, § 40, 19 February 2009
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take realistic account of the general context, as well as the personal circumstances of the applicant” as it was held in Dh in Dh and others v Czech Republic 7 .
In the State of Evrylia, there is no possibility to bring constitutional complaints, which means that the applicant “did everything that could reasonably be expected of him to exhaust domestic remedies taking into account all the circumstances of the case” as the Court established in Ilhan in Ilhan v. Turkey case § 598
3. Compliance with the six-month time limit
On the other hand, we took into acount the admissibility criteria of the six-month timelimit set up in Article 35.1 of the Convention which establishes that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period per iod of six s ix months from the date on which the final decision was taken.
The starting date for the running of the six-month period was on 20 March 2013 when the Appellate Court dismissed the Applicant’s appeal and confirmed the first-instance judgment, which became final. Following this rule, the deadline to submit the application would be 20 September 2013. In addition, the application before the European Court of Human Rights (ECtHR) on 30 July 2013, consequently, the application is submitted on time.
4. Lack of jurisdiction of the Evrylian Courts
Article 1 of the Convention states that the Contracting Parties must act within the limits of their own jurisdiction to protect their citizens. The ECtHR has ruled in favour of extra-territorial jurisdiction, as in Al-Skeini in Al-Skeini and others v. The United Kingdom stating that a State could exercise extra-territorial jurisdiction when “it held effective control of an area outside its borders ” and that “an Iraqi in the actual custody of British soldiers in a military detention centre in Iraq was within the United Kingdom's jurisdiction under 7
D.H. and Othe rs v. the Czech Republic , no. 57325/00, § 116, 7 February 2006
8
Ilhan v Turk ey\[GC], ey\[GC], no. 22277/93, § 59, ECHR 2000-VII
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Article 1 of the Convention”. Likewise, the International Court of Justice wrote that the “international human rights instruments were capable of having an extra-territorial application, particularly in occupied territories”9.
In those cases the physical presence of a State in a territory of another State has made it unproblematic to consider when the jurisdiction can be exercised across the borders. Unlike other ways of having presence in a country, the Internet does not appear physically but abstractly, making it an arduous task to determine whether or not states can exercise extra-territorial jurisdiction when the information is spread through the Internet.
The State of Evrylia had no jurisdiction when stated its actions against Mr Adam, who is a resident of the State of Favonia. As the ECtHR hold in Perrin v. the United Kingdom “the applicant was a resident of the United Kingdom. As a result, he cannot argue that the laws of the United Kingdom were not reasonably accessible to him” 10. Therefore, Mr Adam, as a resident of the State of Favonia, had the only duty to know and act not against his place of residence law.
As the Court understood in Müller in Müller v. Switzerland “a “a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail” 11 . Consequently, the Applicant, according to the circumstance of being a resident of the State of Favonia, fulfilled the requirement of acting according to the law that he had to comply with.
Due to the worldwide nature of the Internet, it is unreasonable for publishers to foresee the legal requirements in all the individual states where posted information can be read. There was a lack of jurisdiction of the Evrylian courts to make this post be deleted due to this very nature of the Internet; it is not possible to control the place of origin of the readers and their specific legislation. 9
Legal Consequences Conseque nces of the Constructio n of a Wall in the Occupied Palestinian Territory, Territory , Advisory
Opinion, I.C.J Reports 2004 (9 July 2004). 10
Perrin v. the Un ited Kingdo m (dec.), no. 5446/03, p.5, ECHR 2005-XI
11
Müller v. Switze rland , no. 41202/98, § 29, 5 November 2002
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The notion of extra-territorial jurisdiction has to be reconsidered from the new technologies perspective, which makes the material boundaries between States a vulnerable concept. The requirements the States have to fulfil when exercising their jurisdiction beyond the borders are based on materiality criteria that cannot be applied when it comes to the Internet.
II. STATEMENT OF THE ALLEGED VIOLATIONS
1. Paragraph 1 Article 10
a. Violation of article 10 of the Convention: Freedom to impart and receive information and ideas.
Article 10.1 ECHR: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The Court describes freedom of expression as “one of the basic conditions for the progress of democratic societies and for the development of each individual”, and the first paragraph of article 10 refers to that freedom specifically, stating that it ought to be guaranteed and exercised freely, without any interference of the authorities.
By closing the Blog the Evrylia Court has both injured the journalist's freedom of communication as well as the right of the public follower of his to keep reading. Both rights are therefore complimented thus violated: Freedom to impart and freedom to receive.
As a matter of fact, the Court has fully expressed that States ought to not come in between the transmitter and the t he receiver r eceiver because both have the "right to get into direct contact with each other according to their will" being true that aspect regarding printed media as well as broadcast media.
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This Part stresses upon the fact that the State has indeed intervened banning communication between transmitter and receiver from the day Mr. Adam is not torn only from his job, but punished by doing such.
Another aspect of significant relevance is that by writing this article, Mr. Adam has contributed once more to provide his readers with information of public interest, that he has been carrying about for quite a long time now, with neither problems nor disturbances.
Living in a democratic society, which is what prevails in the Evrylian Constitution, the State should permit information of general interest to be delivered, all the more reason if that person responsible for that task contributes and has been doing so in order to perfect those constitutional rights the country so prides on having.
In Jersild In Jersild v Denmark the the Court held that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection of the reputation or rights of others", it is nevertheless incumbent on it to impart information and ideas of public interest.
Not only does the press have the task of imparting such information and ideas: ‘’The public also has a right to receive them. Were it to be otherwise, the press would be 12
unable to play its vital role of public watchdog’’ .
b. Violation of article 10 of the Convention: Freedom of press .
In 1986, the Court stated in Lingens in Lingens v Austria that Austria that “the press have the task of imparting such information and ideas: The public also has the right to receive them.”
12
Jersild v. Den mark , 23 September 1994 , §31 , Series A no. 298.
13
Lingens v. Austria, 8 July 1986 §41, Series A no. 103.
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Jurisprudence on the matter has made huge progress given the fact that nowadays it is not compulsory to refer and publish the source of information, moreover, the change has been such, to the point of protecting the confidentiality of journalistic journalistic sources.
The Court makes a clear distinction between information (facts) and opinions (value judgements), and has stated that “the existence of facts can be demonstrated, whereas the truth of value judgements is not susceptible of proof… As regards value judgments this requirement is impossible of fulfilment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention”
Additionally in Dalban in Dalban v. Romania, Romania, the Court stated that "it would be unacceptable for a journalist to be debarred from expressing critical value judgments unless he or she could prove their truth".14
Since the journalist is under no obligation of having to prove his source, whether facts or opinions, makes the interference from the State all the more irrelevant, concluding that whether what he publishes is based on true facts or only rumours makes absolutely no difference. Therefore IT should not be punished as it has been, and constitutes another proof that by banning access to his Blog the Courts of Evrylia have infringed the right of freedom of expression.
For once, Mr. Adam is not obliged to prove his source, the Court has stated that, and this Part has argued suchlike previously, that although apologizing for the damage both personal and professional, that his article artic le may have caused c aused to David K., it should be the other part to prove the article is based on a false trail.
The European Court of Human Rights has repeatedly emphasized (…) that aside from the information itself (as in content), article 10 also protects the means in which thus has been transmitted, the means being the Blog here the object of protection.
Article 10, is also characteristic for protecting those expressions, which may carry a risk of damaging the interests of others. The opinions shared by the majority do not run the
14
Dalban v. Ro mania [GC], mania [GC], no. 28114/95, §49 , ECHR 1999-VI.
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risk of being interfered by States, but Article 10 further covers information and opinions expressed by small groups or those of an individual alone, which can be applied to this particular case, even in the event such information shocks the majority.
On that aspect the Court remarked in its Handyside v. the United Kingdom judgment, Kingdom judgment, and reiterated in its Sunday Times judgment that “the information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference is protected by Article 10, but also als o those that offend, shock or disturb, such are the demands of that pluralism, tolerance and broad-mindedness without which there is no democratic society.”15
This means, amongst other things, that every "formality", "condition", "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued.
Until now, Mr. Adam’s rights have been clearly neglected.
Not only that, but it has yet to be proved, in front of this Court, that the State’s reasons for interfering are legitimate.
Mr Adam has clearly stated that all comments would be welcomed and that none of them would be erased but that does not imply that he should be accountable for the comments posted subsequently, nor does it mean he holds the same opinion.
In Jersild v. Denmark De nmark , just like the present case, the television program, which covered a general interest subject, was just inviting a group of people to express their point of views on a newsworthy subject at the moment, but should not be held responsible for racist comments made by others in their broadcast.The ECHR justified the appearance on the TV show of those racist groups claiming that the subject was of general interest and showed the reality of the racism situation in Denmark, this part can certify that the information written by the journalist was published because prostitution and drug use in the presence of underage has enough relevance to be considered of general interest.
15
Handyside Handysid e v. the United Kingdom, Kingdom , 7 December 1976, §48, Series A no. 24.
16
Jersild v. Den mark , 23 September 1994, Series A no. 298.
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The intentions when making that post available on his blog were none other than to inform about facts that are of public interest involving David K but never encouraging hatred speech against the Kroopa community, since the relation between them is never mentioned in the post.
This argument is further explained in a similar way by the Court in the Jersild v Denmark : ‘He went on to announce that the object of the programme was to address aspects of the problem, by identifying certain racist individuals and by portraying their mentality and social background. There is no reason to doubt that the ensuing interviews fulfilled that aim. Taken as a whole, the feature could not objectively have appeared to have as its purpose the propagation of racist views and ideas’’. 17
2. Paragraph 2 Article 10
a. Violation of article 10: The three requirements for legitimate interference not being proved.
Article10.2 ECHR: 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 impartiality of the judiciary.
The first requirement to legitimate a State’s interference is that a regulation prescribes that condition, restriction, limitation. So far, that exists.
Secondly, any interference is legitimate as long as the one who has disturbed that right, the State in this case, proves that its intervention responds to the legitimate protection of national security, public security, prevention of disorder or crime or to protect moral,
17
Jersild v. Den mark , 23 September 1994, §33, Series A no. 298.
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reputation and rights of others, still to be proved and up to date it has not been done as such.
Thirdly, the State whose responsible for the intervention must prove that it is necessary to do so “in a democratic society”, because of incitement to violence or because of hatred speech. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”.
The ECHR in Zana states that freedom of expression loses its protection whenever the information to be transmited justifies, aproves, incites hatred, violance or intolerance of any kind.18
In the present case, the public manifesto of Mr. Adam does not trigger hatred speech comments of any kind, not as described in Surek v Turkey (1) as “glorification of violence” , where the ECHR justifies the interference when hatred is incited.19
And in the same ruling “the Court reiterates that the mere fact that “information” or “ideas” offend, shock or disturb does not suffice to justify that interference”.
For the reasons above mentioned, the interferences are not legitimate.
b. Violation of Article 10 for not establishing proportionate proportionate measures.
Mentioned previously in Dalban in Dalban is is the fact that the journalist does not have to prove his source in order to communicate.
In Delfi AS v Estonia, Estonia, the Court reveals that freedom of expression can only be interfered, thus limited, by member States in order to protect a person’s reputation. But only provided that the interference is proportionate to the circumstances. Here, as well as there, the question is whether the measures taken to protect private life 20
are proportionate.
18
Zana v. Turk ey, ey, 25 November 1997, §57 to 61, Reports of Judgments and Decisions 1997-VII.
19
Sürek v Turkey (1) Turkey (1) no. 23927/94 and 24277/94 § 61 and 62, 8 July 1999.
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While it would be legitimate to intervene, if the connection were to be proved, a proportionate measure to the harm done would be to pay for the damage infringed to the particular.
When it comes to the term of proportion, as a matter of fact, in Engel and Others v The Netherlands Netherlands a ban on the publication and distribution of a paper criticizing senior officers by soldiers is found by the Court as justified and legitimate interference with freedom of expression, although the same Court added that “ there was no question of depriving them of their freedom of expression but only of punishing the abusive exercise of that freedom of their part.”21
Taking that into consideration, this Part states that the measures taken have not been proportionate, the Evrylia Courts have already al ready punished Mr. Adam, there is long proof about such, yet he has still been deprived of his right to freely express.
3. Violation of Article 6
a. Violation of Article 6 (1) of the Convention: right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
The Evrylian Prosecutor General is conducting a criminal investigation to understand that the applicant has committed an offense of incitement to "hate speech" contained in the state legislation on the subject. The result of this investigation is that the Evrylian Court has adopted an interim measure of blocking access to the applicant’s Bbligg from Evrylia and closing the Phrendbook group forum of EvryFav Media and his Phrendbook’s profile.
The Evrylian Telecommunications Directorate (ETD), prior request from a court order, adopted this measure, justifying it as appropriate in accordance with the Law adopted by the State of Evrylia concerning Internet publications and Internet offences
20
Delfi AS v. Eston ia, ia , no. 64569/09, 10 October 2013.
21
Engel and O thers v. The Ne therlands , 23 November 1976 §98 to 101, Series A nº 22.
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prevention.
Article 6.1 of the ECHR states that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This Article has been infringed for the below set out reasons.
As the Court held in Gorraiz Lizarraga and others v. Spain, Spain , in order for Article 6.1 to be applicable “there must be a dispute over a “right” that can be said, at least on 22
arguable grounds, to be recognised under domestic law” . According to this, Article 6.1 can be applied as the requirement of a “dispute over a right” has been fulfilled. The right disputed is the freedom of expression enshrined in Article 10 ECHR.
In Mantovanelli v. France France the Court held that “one of the elements of a fair hearing within the meaning of Article 6 para. 1 (art. 6-1) is the right to adversarial proceedings; each party must in principle have the opportunity not only to make known any evidence needed for his claims to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision”.23
In line with what has been stated above, the interim measure was adopted unilaterally by the Court and implemented i mplemented by the ETD. No opportunity of any hearing was given to the applicant, even to put some arguments in his own defence. In this sense it is submitted that Article 6.1 of the ECHR has been so gravely breached. This is because the applicant was not given the opportunity to defend himself. No hearing was held and, consequently, the applicant has not been given the chance to make the appropriate defendant claims.
Therefore, the interim measures taken by the State of Evrylia were not taken in accordance with the ECHR and the case-law of the ECtHR due to the fact that the applicant suffered a violation of the right to a fair trial and its right to adversarial proceedings, as he could not pronounce himself regarding to the adoption of the
22
Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 43, ECHR 2004-III
23
Mantovanelli v. France, 18 March 1997, § 33, Reports of Judgments and Decisions 1997-II
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measure.
b. Violation of Article 6 (3): (b) to have adequate time and facilities for the preparation of his defence and (c) to defend himself in person or through legal assistance.
The Evrylian Court has led the applicant to a state of helplessness, violating the right to defend himself and the right to have time to prepare a defence, established in subparagraphs b) and c) from the third paragraph of the Article 6 of the ECHR.
Furthermore, the fact that any hearing was held or that he has not been transferred to make the pertinent claims is a violation of the right to a fair hearing that recounts the first paragraph of the Article 6 of ECHR. However, the Appeal Court who dismissed his appeal on the basis of the same arguments as the First Instance Court ignored this serious procedural obstacle.
The State of Evrylia adopted unilaterally a clearly burdensome action, but not only for the applicant extent, but many professionals have been adversely affected by the action taken by the Court. So much so, that many journalists tried to appeal the decision to the Court that, once again, dismissed the claim. The blogs that have been closed are part of their working tools, and they have been deprived from them, representing a serious injury in his working life and, consequently, has also hurt the rest of professionals who were in them.
It makes no sense that the Court has erased the Phrendbook group forum of EvryFav Media and the Phrendbook’s profile, since these forums have nothing to do with what is investigated in the case, as the comments endorsing "hate speech" were performed through Bbligg, and not in these forums. Thus, the measure is disproportionate and unlawful, as how it was its adoption process.
In this direction, at no time the applicant has been asked to delete the Bbligg comments, but simply opted to block him, directly depriving him, as discussed in the previous section, from the right to freedom of expression enshrined in the Article 10 of the ECHR. 17
c. Violation of the Article 6 (2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”
Fruit of the reasons stated above, the applicant's right to innocence established in the second paragraph of the Article 6 of the ECHR has been violated.
The Court stated in Yassar Hussain v. the United Kingdom Kingdom that the “presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair criminal trial required by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty unless he has been proved so according to law” 24.
This applicant's right has been violated in the measure that, for the moment, he has not been given a chance to defend himself and, therefore, the Court has adopted, by the direction being taken by the investigation, the decision to convict him guilty for some facts that have not even been proven.
The causal relationship between the events of March 2010 and the applicant does not exist, except that the Internet site in which they occur is of the applicant's property.
Still, the Evrylian Court insists on saying, under cover of the said law, that the applicant itself is guilty without any weight evidence and adopting a disproportionate measure to solve it.
If we were in the case that it existed a causal link between the events in March 2010 and the applicant, why was not him asked to delete the Bbligg comments? It is true that in civil proceedings against the applicant, it was stated that an Article he had published will be erased, but nothing clear was said about the comments endorsing "hate speech".
The investigation has not been initiated until September 2010, six months after the incidents occurred and the measure is not adopted until June 2013. However, instead of seeking the least harmful measure to the plaintiff, it has been chosen to deprive him of
24
Yassar Hussain v. the United Kingdom, no. 8866/04, § 19, ECHR 2006-III
18
one of his working tools injuring not only the applicant but also to a large number of journalists participating in the forum.
To sum up, Mr Adam is a victim of a breach of the Convention as his right to a fair trial has been violated. Moreover, his right to innocence has been infringed too, due to the State of Evrylia has executed the interim measures that conclude that the applicant is liable before proving so. That is to say, Mr Adam has been considered a hate speech endorser when it has not been proved that there is causality between the Article published by him and the comments that caused the implementation of the measures me asures by the State of Evrylia.
19
TABLE OF CONTENTS
Table of contents ........................................... .................................................................. .............................................. ...........................................1 ....................1 List of references references ........................................... .................................................................. .............................................. ...........................................1 ....................1 I. Conventions and Treaties ........................................... .................................................................. .......................................1 ................1 II. Jurisprudence Jurisprudence .............................................. ..................................................................... ............................................... ................................1 ........1 III. Secondary sources ........................................... .................................................................. .............................................. ............................ .....2 2 List of abbreviations ............................................. .................................................................... .............................................. ...................................3 ............3 Statement of facts .............................................. ..................................................................... .............................................. .......................................3 ................3 Legal pleading............................................ pleading................................................................... .............................................. .............................................. ......................... 4 I. Admissibility of the claim ........................................... .................................................................. .......................................4 ................4
1. Victim Status ............................................ ................................................................... ............................................... ................................4 ........4 2. Non-exhaustion of domestic remedies ............................................ ............................................................6 ................6 3. Non-compliance with the six-month time-limit ............................................10 ............................................10 4. Extra-territorial jurisdiction j urisdiction...................... ............................................. ............................................... ................................4 ........4 II. Statements of the alleged violations...................................... violations............................................................. .......................... ...12 12
1. Protection of the Right to respect for private and family life........................12 2. Legitimate interference with Mr. Adam's freedom of expression.................14 3. Violation of the principle of of non discrimination ...........................................17 ...........................................17 4. Responsibility for the offensive comments against the Kroppa community.18
LIST OF REFERENCES
I. CONVENTIONS AND TREATIES
!
Convention for the Protection of Human Rights and Fundamental Freedoms, (entered into force 3 September, 1953)
II. JURISPRUDENCE
!
!
!
!
A v. Norway, Norway, no. 28070/06 Akdivar and Others v. Turkey Burden v. the United Kingdom [GC], Kingdom [GC], no. 13378/05 Cantoni v. France 1
!
!
!
!
!
Chauvy and Others v. France, France, no. 64915/01 Chauvy et al. v. France, France, no. 64915/01 De Wilde, Ooms and Versyp v. Belgium, Belgium, Series A no. 12 Delfi AS v. Estonia, Estonia, no. 64569/09 Demopoulos
and
Others
v.
Turkey Turkey nos.
46113/99,
3843/02,
13751/02,
13466/03,10200/04, 13466/03,10200/04, 14163/04, 19993/04 and 21819/04 !
!
!
!
!
!
!
!
!
Erbakan v. Turkey, Turkey, no. 59405/00 Fressoz and Roire v. France [GC], France [GC], no. 29183/95 Gäfgen v. Germany [GC], Germany [GC], no. 22978/05 Gorraiz Lizarraga and Others v. Spain, Spain , no. 62543/00 Lingens v. Austria, Austria, Series A no. 103 Pa !a and Erkan Erol v. Turkey, Turkey , no. 51358/99 Perrin v. the United Kingdom (dec.), Kingdom (dec.), no. 5446/03 Pfeifer v. Autriche, no. 12556/03 Recommendation No. R (97) 20 of The Committee of Ministers to member states on ‘’Hate Speech’’: http://www.coe.int/t/dghl/standardsetting/media/doc/cm/rec%281997%29020&expm em_EN.asp
!
!
!
!
Saghinadze and Others v. Georgia, Georgia , no. 18768/05 Soulas et al. v. France, no. France, no. 15948/03 Tauira and 18 others v. France , no. 28204/95 Varnava and Others v. Turkey [GC], Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 16072/90 and 16073/90, § 157, ECHR 2009
!
Vartic v. Romania (no. 2), no. 14150/08
III. SECONDARY SOURCES
!
Practial Guide on Admissibility Criteria, Research Division, European Court of Human Rights, 2011
!
KILKELLY, URSULA. A practical guide to the implementation of article 8, European Convention of Human Rights. The right to respect for private and family life, 2003.
!
VANDENHOLE, WOUTER. Judgements WOUTER. Judgements and Documents, Documents, Faculty of Law Universiteit Antwerpen, 2013. 2
!
CASADEVALL, JOSEP. El JOSEP. El Conveni europeu de drets humans, el Tribunal d'Estrasburg i la seva jurisprudència, 2007.
!
Rules of Court, European Court of Human Rights, July 2009
LIST OF ABBREVIATIONS
Art.
Article
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
ETD
Evrylian Telecommunications Directorate
STATEMENT OF FACTS
Firstly, in March 2010, Mr Victor Adam, a very well know journalist, posted an article on his blog, with a wide coverage and referred to in the media, about the personal life of a famous Evrylian footballer, David K. This article received a big amount of offensive comments against the Kroppa community, which, subsequently, made that there was violence with Favonian residents in Evrylia during the protest of the Kroppa community in Evrylia in front of the Favonian Embassy. Eventhough, the applicant did not delete any of the impugned posts appearing on his blog and, moreover, the journalist posted a link on his Private Phrendbook profile wall and on the journalists forum group EvryFav Medium in line with common practice.
Secondly, David K brought civil proceedings against the applicant before the Evrylian courts, claiming damages and demanding the deletion of the offending article and the publication of an apology. Also argued that the article ar ticle was defamatory, he suffered the cancellation of several publicity contracts, the threat of suspension by Selsee Football Club for whom he played, and his fiancée left him as a result.
Thirdly, in September 2012, the Evrylopol Tribunal ordered Mr Victor Adam to pay damages, to delete the blog post and to publish an apology concerning the unproved presumptions (involvement in drugs and prostitution) regarding the rights of privacy and family life and the loss of income due to the cancelled contracts.
3
Fourthly, Mr Adam appealed the judgment but the appellate court dismissed the appeal and confirmed the first-instance judgment, which became final on 20 March 2013. Despite the fact, he refused to delete the post, which made that the Evrylian Tribunal ordered Mr Adam to pay a fine for each of delay.
Fifthly, the Evrylian Prosecutor General’s filed for an injunction to have the blog post blocked together with any subsequent reference to it. The injunction was granted and a nd an order was sent to the Evrylian Telecommunications Directorate (ETD) to implement it. Also, Mr Adam appealed the injunction before the appellate court, which dismissed his appeal on June 2013. Then, access to the applicant’s personal blog was blocked in Evrylia.
Lastly, Mr Adam brought an application before the ECHR asking to recognize a violation of Mr Adam’s rights and freedoms protected by the Convention, even if the criminal investigation against Mr Adam is still pending before the prosecutor’s office.
LEGAL PLEADING
I. ADMISSIBILITY ADMISSIBILITY OF THE CLAIM
1. Victim Status
The ECHR on its Article 34 determines that the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. According to this, in order for a complainant to submit an application to the Court, it is necessary that the applicant is considered a victim of a breach of the Convention.
It is well established, as it was pointed out by the Court in Gorraiz Lizarraga and 1
Others v. Spain , that “in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the
1
Gorraiz Lizarraga and Others v. Spain, Spain , no. 62543/00, § 35, ECHR 2004-III
4
applicant and the harm which they consider they have sustained on account of the alleged violation”. Mr Adam cannot be considered a “victim” in the sense that the Court interprets this notion because he has not suffered a harm that allows the existence of such “direct link”.
Firstly, the measure executed by the State of Evrylia consisting on blocking the Applicant’s personal blog had an effect just on the Evrylian citizens, and therefore not on Mr Adam, as a resident of Favonia. The State of Evrylia, when executing such measure, was trying to ensure the fundamental rights of its nationals and securing the enforcement of its national law. The harm claimed by the Applicant cannot be considered as such, since it does not affect his professional activity nor his personal sphere.
2
The Court stated in Tauira and Others v. France that “the applicants' allegations have not been sufficiently substantiated for the Commission to conclude, prima facie, that they can claim to be the victims of a violation of the Convention, given that to date the presumption of the lasts has had only potential consequences which are too remote to be considered to be an act directly affecting their personal situation”. For that reason, Mr Adam cannot be considered a victim of a violation of the Convention due to the lack of direct harm suffered by him; the fact that the access to his personal blog was blocked in Evrylia is a too “remote” effect to be considered to directly affect him and hence, to be considered a harm.
Morover, according to Article 35.3.b) of the Convention, the disadvantage suffered by the applicant has to be significant. In Vartic v. Romania the Romania the Court held that this criterion “hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court”3. Consequently, the measure consisting on blocking the personal blog cannot be considered as harm in accordance to the criteria established by the Court.
2
Tauira and 18 others v. France, France, no. 28204/95, p.133, ECHR 1995
3
Vartic v. Romania (no. 2), no. 14150/08, § 38, 17 December 2013
5
Secondly, the taken down of the profile did not have an effect directly on Mr Adam, as such profile was mainly employed by a group of professionals. Consequently, Mr Adam cannot claim to be a victim given that the measure had no impact on his individual interests. The Applicant cannot be regarded as being a victim of a breach of the Convention as there is no harm caused to Mr Adam; there is a lack of the requirement of causality between the victim and the prejudice. It is submitted that the measure taken by the State of Evrylia consisting on the taken down of the Phrendbook profile cannot be considered a harm either.
The Court has also held in Pa !a and Erkan Erol v. Turkey 4 that when an applicant is partly responsible for the violation that alleges, he or she cannot be considered to be a victim. As a national of the State of Evrylia, Mr Adam should have the duty to know and to act according to its national law. In addition, as described further on, the Court has stated the professional’s duty to take legal advice when carrying out their occupational activities5 in Perrin v. the United Kingdom. Kingdom. Mr Adam, as a professional journalist, had the duty of taking the appropriate advice of the Evrlylia’s legislation on anti-hate speech. For that reason, he is responsible for the breach of the Convention that he alleges, and therefore, he cannot be considered as a victim of such.
2. Non-exhaustion Non-exhaustion of domestic remedies
On 30 July 2013, the applicant Mr Adam brought an application before the ECHR even though the criminal investigation against the applicant under the legislation on hatespeech and the protection of national minorities is still pending before the prosecutor’s office since 20 September 2012, whose consequences could be an imprisonment of six to three years.
Article 35.1 ECHR states that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
4
Pa !a and Erkan Erol v. Turkey, Turkey , no. 51358/99, § 22, ECHR 2006
5
Perrin v. the Un ited Kingdo m (dec.), no. 5446/03, p. 5, ECHR 2005-XI
6
The State of Evrylia must waive the benefit of the rule of exhaustion of domestic remedies, the essential aim of which is to protect the national legal order as it was established in De in De Wilde Ooms and Versyp v. v . Belgium, where the Court held that “there exists on this subject a long established international practice from which the Convention has definitely not departed as it refers, in Article 26, to the generally recognised rules of international law6".
Related to the efficient and available domestic remedies must be taken into account what the Court said said in Akdivar and Others v. Turkey “it “ it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of 7
success” .
In Evrylia the Kroppa population is integrated as a result of a long process of political action and the implementation of a protective legal framework. Furthermore, the Evrylian State is a member of the Council of Europe and it has also ratified all existing Protocols of the Convention, which shows a legal certainty in the circumstances that involves the case.
Also, in Akdivar and Others v. Turkey Turkey the Court sentenced that “it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants”8.
Firstly, about the political context in Evrylia, the Kroppa population is integrated as a result of a long process of political action and the implementation of a protective legal framework. Furthermore, the Evrylian State is a member of the Council of Europe and it 6
De Wilde, Oom s and Versy p v. Belgium , 18 June 1971, § 55, Series A no. 12
7
Akdivar and Others v. Turk ey, ey , 16 September 1996, §68, Reports of Judgments and Decisions 1996 - IV
8
Akdivar and Others v. Turk ey, ey , 16 September 1996, §68, Reports of Judgments and Decisions 1996 – IV
7
has also ratified all existing Protocols of the Convention, which shows a legal certainty in the circumstances that involves the case.
Secondly, related to the general legal context, appeals for revision in Evrylia can be formed only if new and previously unavailable evidence is adduced, provided it is relevant to the outcome of the case, if not all concerned parties have been brought in the proceedings or if there were malfunctions concerning the notification of documents or decisions to the parties. Also, there is no any possibility to bring constitutional complaints.
Thirdly, specifically about the Criminal proceedings, the Appeal Court based its decision to dismiss the applicant’s appeal against the injunction order on the provisions of the Law concerning Internet publications and the prevention of Internet offences. Furthermore, an injunction can only be appealed once, according to the provisions of the Criminal Code of Procedure concerning the interim measures taken during the Criminal proceedings.
Fourthly, during the Civil Proceedings, the Appeal Court evoked similar reasons as the ones found by the first instance court and considered the harmful event to have taken place on the Evrylian territory due to its direct effect produced therein, thus granting them upon the case.
Fifthly, in civil matters having as claim a declared amount of less than the equivalent in national coin of 3.000 !, the Evrylian Civil Code of Procedure establishes two jurisdictional levels, thus making the decision of the appeal court final.
Finally, related to the personal circumstances of the applicant, he was present at the hearing of his case when the Evrylopol Tribunal allowed Mr David K. claim on September 2012 and he brought his arguments before the Court.
Therefore, the State of Evrylia has enough legal guarantees taking a realistic account about the general legal and political context, as well as the personal circumstances of the applicant already explained, which means that there is no other option than the
8
domestic remedies of the Evrylian State have to be exhausted before dealing with a matter in Article 35 ECHR as it was established in A, in A, B and C v Ireland 9.
The Evrylian Criminal courts must have the opportunity to determine the compatibility of domestic law with the Convention as it was sentenced in Burden v the UK “if an application is nonetheless subsequently brought to Strasbourg, the European Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries 10”.
It must be reiterate that Article 35 of the Convention has to operate with a degree of deference to domestic formalities as it was established in Saghinadze and Others v Georgia 11. That means that the Evrylian prosecutor’s investigation must be respected in any case. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it as it was explained in Gäfgen v. Germany 12.
Even if the applicant is living in Garand, the capital of Favonia, out of the Evrylian borders, this is not an obstacle per se to the exhaustion of the Evrylian domestic 13
remedies as it was established in Demopoulos in Demopoulos and Others v Turkey “as “ as a general rule applicants living outside the jurisdiction of a Contracting State are not exempted from exhausting domestic remedies within that State, practical inconveniences or understandable personal reluctance notwithstanding”.
Mr Victor Adam must exhaust domestic remedies even if he did not choose voluntarily to place himself under the jurisdiction of the Evrylian State as it was established in Demopoulos and Others v Turkey. Turkey. The applicant must respect the principle of subsidiarity, which is “of paramount importance to ensuring the protection of rights at
10
Burden v. the United Kingdom [GC], no. 13378/05, §42, ECHR 2008
11
Saghinadze and Others v. Georgia, Georgia , no. 18768/05, §§83-84, 27 May 2010
12
Gäfgen v. Germany [GC], Germany [GC], no. 22978/05, § 142, ECHR 2010
13
Demopoulos and Others v. Turkey §98 [GC], §98 [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03,10200/04,
14163/04, 19993/04 and 21819/04, ECHR 2010
9
domestic level; where effective remedies are available, an applicant is required to make use of them before invoking the Court's international supervision” 14.
3. Non-compliance with the six-month time-limit
On 20 March 2013 the appellate court decision dismissed Mr Adam’s petition and confirmed the first-instance judgment, which became final.
On 20 June 2013 the applicant appealed the injunction to block him the access to his personal blog before the appeal court, but it was dismissed and the injunction was executed.
On 30 July, Mr Adam filed an application before the ECtHR while a criminal investigation against the applicant is still pending before the prosecutor’s office since 20 September 2012.
As a consequence, the six-month period would run from the date of the final decision in the process of exhaustion of domestic remedies, as the Court established in Varnava and Others v Turkey “the six-month rule cannot require an applicant to lodge the Court Court of his complaint before his position in connection with the matter has been finally 15
settled at the domestic level ”.
To sum up, while the criminal investigation against the applicant is still pending before the prosecutor’s office, there is no chance to submit an application to the ECHR, which means that the six-month time-limit is not applicable in this case.
4. Extra-territorial Extra-territorial jurisdiction
On the one hand, the State of Evrylia bases its jurisdiction on the international private law provisions in civil matters, according to which issues relating to liability for 14
Demopoulo s and an d Others Othe rs v. Turkey §101 Turkey §101 [GC], [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03,10200/04,
14163/04, 19993/04 and 21819/04, ECHR 2010 15
Varnava and Others v. Turkey Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90,
16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009
10
wrongful acts shall be decided by the courts of the place where the harmful event occurred or may occur.
The publications made by Mr Adam on his personal blog and Phrendbook profile have had consequences in Evrylia. Hence, it is stated that there has been a wrongful activity that has had its effects in the territory of the State of Evrylia.
As Evryilia has to enforce the provisions on international private law, the conflict had to be resolved by the Evrylian courts, in compliance with these provisions. Therefore, Evrylia had jurisdiction to take the legal measures consisting on taking down Mr Adam’s Phrendbook and the access to his blog, due to the place where the wrongful acts took place, and thus, acted based on international private law.
16
On the other hand, according to what the Court held in Perrin v. The United Kingdom , as the Applicant was carrying on a professional activity through the Internet, it is not admissible to allege that the effect produced by the publications in other countries was not foreseeable. It is in the very nature of the Internet its inherent worldwide effect. Therefore, publishers must have a “high degree of caution”17 when taking legal advice in order to prevent infringements of other States law.
18
As the Court recalled in Cantoni v. France , “a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”. In this case, the Court established that this requirement had to be fulfilled in relation to persons that were carrying c arrying a professional activity, when taking legal advice.
Morover, Mr Adam is a national of the State of Evrylia, and for that reason he cannot claim that this requirement is not reasonable to him. Mr Adam, as an Evrylian, had to be cautious when making inquiries about the legislation of a State of which he is national.
16
Perrin v. the United Kingdom (dec.), Kingdom (dec.), no. 5446/03, p.5, ECHR 2005-XI
17
Chauvy and Others v. France, France , no. 64915/01, § 44, ECHR 2004-VI
18
Cantoni v. France, France, 15 November 1996, § 35, Reports of Judgments and Decisions 1996-V
11
Therefore, Mr Adam cannot claim that the effects of not complying with the laws of the State of Evrylia were not foreseeable to him. As a professional journalist, Mr Adam had to fulfil the precaution requirement to seek advice for the development of his activity. Mr Adam had the duty to be informed of the legal effects that his publications could have around the world, and more specifically, in the State of Evrylia.
II. STATEMENT OF THE ALLEGED VIOLATIONS
1. Protection of the Right to respect for private and family life.
Article 8 ECHR - Right to respect for private and family life:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 8 seeks the protection in four different areas of the autonomy of individuals: Their private lives, their family lives, their home and their correspondence. In this case, the private live section has been violated in two matters: The reputation being the first, and David K’s honor the second.
Pfeifer v. Autriche refers Autriche refers to a publication that had damaged the petitioner’s reputation. The jurisprudence of the convention states the right of an individual to protect his own reputation is covered by article 8, framed in the respect for private life. 19
19
Pfeifer v. Autric he, no. 12556/03, §35, 15 November 2007.
12
20
In Chauvy et al. v. France a petition was made by virtue of Article 10, where the Court stated that the reputation of an individual, tamed by a published book, was protected by Article 8 as part of the private life and should be balanced against the right to free speech.
Blanco v. Sweden, Sweden, consisting of an accusation in accordance with article 8, served to declare one's right to protect their own reputation against defamatory declarations made by the press, in the event that those consist of one's privacy.
In Delfi AS v. Estonia Estonia the Court reiterates that the reputation’s right of protection is covered by the Article 8 of the convention. 21
In A. In A. v. Norway, Norway, the Court establishes that, in order to use Article 8, it is necessary that the attack against one’s reputation reaches a certain level of seriousness and that it is been done in such a way that damages someone's use of the right to private private life.
22
Therefore, David K's reputation is protected by article 8 of the ECHR. David K.’s right to protect his reputation against the defamatory statements published by Victor Adam in his blog’s post has been clearly violated, since they directly affect his private life.
Since the information posted was about prostitution and drug use in the presence of underage, the attacks on David K.’s reputation are of a high level of seriousness, and they were made in a way that harm his personal use of the right to private life.
The severeness of the unfounded information concerning David K's personal life published by Victor Adam had severe s evere consequences to his personal life, amongst them: The cancellation of numerous advertising contracts that translated into loosing income due to the cancellation of those; receiving a threat of suspension by the Selsee Football Club in which he used to play, and the fact that his girlfriend ended their relationship.
20
Chauvy et al. v. France, France , no. 64915/01, §70, ECHR 2004-VI.
21
Delfi AS v. Eston ia, ia , no. 64569/09, §80, 10 October October 2013.
22
A. v. Norway , no. 28070/06, 9 April 2009.
13
It is therefore appropriate and proportionate, in view of the circumstances, to declare the obligation of Victor Adam to pay damages in favor of David K., the obligation to publish a public apology a pology since the presumptions pres umptions were not proved, and for the post to be deleted to avoid its information and defamatory comments against David K to be accessible by others.
2. Legitimate interference interference with Mr. Adam's freedom of expression.
Article 10 ECHR – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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 inter ests 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 Court estimated in Soulas et al. v. France 23 and, Fressoz and Roire v. France24 , amongst others, that an interference in the practice of the freedom of expression infringes Article 10 of the ECHR, unless it is foreseen by law, addressed to one or more legitimate goals, referred in section 2, and that it is needed in a democratic society.
The legitimate aims of the interference must be addressed to protect national security, public security, prevention of disorder or crime, moral protection and other’s rights.
23
Soulas et al. v. France, no. France, no. 15948/03, 10 July 2008.
24
Fressoz an d Roire v. Fran ce [GC], ce [GC], no. 29183/95, ECHR 1999-I.
14
The sentence in Lingens v. Austria Austria was inflicted on the grounds of a law prescription and as a result of a legitimate intervention by virtue of the article 10.2 of the ECHR. 25
Applying that resolution to the case at hand, this part determines that a legitimate interference of the freedom of speech of the journalist Victor Adam has been made, the same stated in article 10 of the ECHR. That interference is legitimate given the fact that the three prerequisites mentioned above take place:
First, it is foreseen as such by law, based on article 153 from the Evrylian Civil Code;
Second, because its focus is a legitimate goal needed in a democratic society, and last, because it is considered that two are the purposes that justify it, those being:
1) To protect the national security and prevention of disorder or crime: Victor Adam’s post and the comments against the Kroppa minority produced a protest in front of the Favonian embassy, where conduct of violence between the citizens of Favonia and Evrylia took place. Thanks to the interference on Victor Adam’s freedom of expression Evrylia can reset the order stopping the protest and the violent episodes, therefore, it is a justified legitimate mission needed in a democratic society.
2) To protect moral, reputation and rights of others: The publication made by Victor Adam in his blog infringes Article 8 of the ECHR that guaranties the right to a private and familiar life, and because his honour and reputation has been heavily damaged; which shows us a legitimate aim needed in a democratic society.
In Delfi AS v. Estonia, the Court considers that the decision of deleting the offensive comments made through a news statement hosted in a news website, therefore the restriction of society’s freedom of expression, was made with a legitimate aim of protecting the reputation and rights of others.26
25
Lingens v. Au stria, stria , 8 July 1986, Series A no. 103.
26
Delfi AS v. Eston ia, ia , no. 64569/09, §77, 10 October October 2013.
15
Therefore, it is considered that all the prerequisites apply for the interference of the right to freedom of expression to be breached legitimately, and proportionately.
In Lingens In Lingens v. Austria, Austria, related to the consideration of Articles 8 & 10 of the ECHR. it is established that in order to limit the freedom of expression (Art. 10.2) the reputation of the damaged has to be attacked; even in the case of Politicians, with less measure, since they are under public scrutiny. 27
We cannot compare a soccer's player condition to the one of a Politician, since the last one has a detailed study of all his words and actions by journalists and general audience and therefore limit his right to a private life and family being this a general interest matter.
In Delfi In Delfi As. v. Estonia, Estonia , the Court considered that when the freedom of expression right is balanced with the right to private life, the established criteria in the consideration exercise must include the following: Contribution to a general interest debate; How well known the concerned person is; The object of the report; The gathering information method and its veracity; the content, shape and consequences of its publication and the gravity of the penalty imposed.
28
Applying the established criteria of the Court in the ponderation exercise in the case dealt at present; the revealed aspects of David K’s private life cannot be considered information that contributes to the general interest debate because David K is known for his career as a football player, and the facts published were related to his private life only, not associated with his profession.
The final intention of the publication is none other than to attack the soccer player's reputation. The information itself is neither proved nor verified. The content is against his privacy and has caused prejudices to his person and the public order was also altered when the altercate took place.
27
Lingens v. Au stria, stria , 8 July 1986, §36, Series A no. 103.
28
Delfi AS v. Eston ia, ia , no. 64569/09, §83, 10 October October 2013.
16
The authorities have reached a fair balance with the protection of both values guaranteed by the Convention: Freedom of expression as protected by Article 10 and David K's right to reputation, granted by Article 8 of the Convention. Therefore the warrant presented by the attorney’s general office of Evrylia in order to block the blog post and all its references is considered to be proved and justified.
3. Violation of the principle of non-discrimination.
Protocol No. 12 ECHR. Article 1 – General prohibition of discrimination:
1 The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2 No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
In Erbakan v. Turkey §56 , the claimant was punished for declarations classified by National Courts as Hate speech.
29
The Court highlighted that tolerance and respect for equal dignity of all human beings forms the bases of a democratic and plural society.
This fact proves that in certain democratic societies to promote or justify hate based on intolerance (including religious) is needed for punishment or prevention of all forms of expression to occur. Making sure that this “formalities”, “conditions”, “restrictions” and “punishments” are in the same level of the legitimate goal pursued.
On October the 30th 1997, the Committee of Ministers of the Council of Europe passed the Recommendation (97) 20 about “hate speech” and its appendix. 29
Erbakan v . Turkey, Turkey , no. 59405/00, §56, 6 July 2006.
17
30
The recommendation adopted by the CM emerged from the will of Europe to take measures against racism and intolerance, specifically against all forms of speech existing, instate, promote or justify racial hate, xenophobia anti-Semite behavior and other hate expressions based on intolerance.
The Committee of Ministers suggested that the governments of the member States should be inspired by certain principles with regard to the fight against hatred incitement.
In this particular case, this Part considers that the journalist Victor Adam is accountable for inciting the vast majority of the offensive, racist, and hate comments against the Kroppa community.
The States are under the obligation of punishing any signs of incitement to hatred, therefore Evrylia’s reaction to block Victor Adam’s blog (The one hosted in Blingg and the one hosted in Phrendbook) is not only correct but necessary; This measure certainly will avoid future and continuous damage to the Kroppa minority with discriminatory comments and offenses to be publicly displayed in such a universal and immediate media that is the internet.
4. Responsibility for the offensive comments against the Kroppa community.
The journalist, having the right to allow or not comments in his posts, should be responsible for those that can spread from there.
The creators of those blogs can decide whether they want to allow or not comments in there, also stating if those comments can be made anonymous or not.
30
Recommendation No. R (97) 20 of The Committee Committee of Ministers Ministers to member states on ‘’Hate ‘’Hate Speech’’:
http://www.coe.int/ http://www.coe.int/t/dghl/sta t/dghl/standardsetting/ ndardsetting/media/doc/cm/r media/doc/cm/rec%281997%29020&expmem_EN.asp ec%281997%29020&expmem_EN.asp
18
Therefore, letting the users to comment without being identified makes it really hard for a damaged person to go to Court to present damages against the anonymous bloggers.
Since it is Victor Adam's blog, despite being offered by the Blingg platform, he is the one offering a space for those comments by writing his own sections. Albeit the journalist stated s tated that all kind of comments would be allowed does not detach him from the responsibility of any them, specially if they are of discriminatory nature.
Non-discrimination is a fundamental principle that has to be protected in all its aspects, aspects , so the journalist is accountable for letting those racist comments to remain in his blog by not removing them when it was clear that a minority was being damaged by them. He can be guilty by not acting accordingly, avoiding the duty of care towards his readers, for not reviewing the comments, and accountable for omission by not deleting them.
When comments are made in blog entries, those are forwarded to the creators of the blog for his own information / verification. The author could have acted with the diligence expected of his profession and delete those since the moment they were first posted, avoiding them to be accessible acces sible to the readers rea ders of the blog, damaging the right to non discrimination foreseen in Article 1 of the Protocol No. 12 to the ECHR.
The Journalist, by deciding to allow those comments to be made by anonymous unregistered users in his blog, admits the responsibility of all of them. This implies that Victor Adam has to be held liable for the offensive comments made against the Kroppa community since he is the one that has permuted and incited them.
Being this an important blog with a valuable repercussion, and the nature of the story the journalist knew that it would have a massive reach, being able to foresee the negative comments that would be made against different subjects on the life of the soccer player, one of them being his membership to the Kroppa minority.
In Delfi In Delfi AS v. Estonia the Estonia the Court establishes that: “Any information communicated via the Internet spread so quickly that by the time the inappropriate comments were finally deleted the public interest in the given news and the comments posted on it had waned. 19
Measures taken weeks or even days later for protecting a person’s honor were no longer sufficient, because offensive or unlawful comments had already reached the public and done their damage. 31
Since controlling the Internet was an impossible task for an ordinary person, the party with control over a specific portal had the duty to take action where necessary to prevent violation of personality rights”.
In Delfi In Delfi AS v. Estonia, the Estonia, the Court considers that the petitioner company, throughout the publication of a news story, could have been foreseen that it could cause negative reactions against the aggrieved company and its solicitors.32
31
Delfi AS v. Eston ia, ia , no. 64569/09, §63, 10 October October 2013.
32
Delfi AS v. Eston ia, ia , no. 64569/09, §86, 10 October October 2013.
20
