Below are set out certain rulings delivered by the European Court of Human Rights, presented in a chronological order, which may be of particular interest to the GRECO community: Kurkut and Others v. Türkiye (nos. 58901/19, 59988/19, 14944/20, 23565/20, 29101/20; 42116/20, and 28956/21, 25 June 2024) concerns the authorities’ refusal to appoint the applicants, who fulfilled all formal conditions, to public service on account of negative background checks and the alleged unfairness of the administrative law proceedings in which the applicants requested the courts to set aside the authorities’ refusal. The Court found that the concrete factual grounds for the failed background checks had not been disclosed to the applicants, and the administrative courts had not provided the applicants with adequate safeguards to make up for the non-disclosure of evidence. In addition, they had failed to effectively exercise their powers of review of the administrative decisions in question. Violation of Article 6 § 1 of the European Convention on Human Rights (right to a fair trial). RFE/RL Inc. and Others v. Azerbaijan (nos. 56138/18, 48735/19, 51207/19, and 58694/19, 13 June 2024) concerns the authorities’ decisions to completely block access to four online media outlets’ websites since 2017-18 on the grounds that some of the articles published by them, which also exposed instances of corruption, featured allegedly unlawful content. The applicants argued, in particular, that the blocking orders were because they were critical of the Government and exposed abuse of power and corruption. The Court held that the wholesale blocking of access to the websites of the four online media outlets had not been “prescribed by law”. National law had not been sufficiently foreseeable as to its effects to enable the applicants to regulate their conduct and had not indicated with sufficient clarity the scope and manner of exercise of the discretion afforded to the authorities in the field it regulated. Violation of Article 10 (freedom of expression). Kokëdhima v. Albania (no. 55159/16, 11 June 2024) concerns the decision to remove the applicant from office as a Member of Parliament (MP) because of a conflict of interest with his ownership of a company that received income from public resources after his election to office. The applicant complained in particular that the interpretation of the legislation in his case had been overly broad. The Court, after assessing the interpretation of national constitutional law, concluded that, in the light of the circumstances of the case, the decision removing the applicant from office as an MP had been neither arbitrary nor insufficiently foreseeable. The applicant had not taken all measures necessary to terminate any ongoing conflict of interest at the time of assuming his mandate. No violation of Article 3 of Protocol No. 1 (right to free elections). Saakashvili v. Georgia (nos. 6232/20 and 22394/20, 23 May 2024) concerns the conviction of former President for abuse of official authority for, amongst others, granting a pardon during his presidency to high-ranking officials convicted of murder. The applicant complained, amongst others, that he could not have possibly foreseen that he would have been held criminally liable for exercising the power of presidential clemency, which was absolute under domestic law. The Court held that the fact that the applicant’s case had had no precedent in Georgia could not suffice to call into question the foreseeability of the relevant criminal provisions. In that respect the Court pointed out that the interpretation of the relevant domestic law by the domestic courts in the criminal proceedings at issue had been both reasonable and consistent with the essence of the offence. The applicant’s argument that he had expected pan-European constitutional custom to shield him from criminal liability for acts committed during the exercise of his discretionary presidential powers was also unfounded. The applicant could reasonably have foreseen that his conduct would have rendered him criminally liable. No violation of Article 7 (no punishment without law). Aydın Sefa Akay v. Türkiye (no. 59/17, 23 April 2024) concerns the arrest and pre-trial detention of the applicant, as well as the search of his house and person, in the aftermath of the 2016 attempted military coup, in spite of his diplomatic immunity as a judge for the UN International Residual Mechanism for Criminal Tribunals. The applicant complained that his arrest, pre-trial detention and searches of his home and person, while he was working remotely from Türkiye, were unlawful because they were in blatant disregard of his diplomatic immunity. The Court found that the applicant appeared to have been entitled to full diplomatic immunity, including the inviolability of his person and private residence and being shielded from any form of arrest or detention for the duration of his term of office as an international judge, under international law. In the exercise of their judicial functions, international judges are independent of all external authority and influence, including from their own State of nationality. The applicant’s arrest, pre-trial detention, search of his house and person had thus been unlawful. Moreover, the national courts had only first examined the issue of the applicant’s diplomatic immunity after over eight months, rendering futile any protection the applicant had had as an international judge, and had not examined it at all in relation to the searches of his house and person. Violation of Article 5 § 1 (right to liberty and security) and Article 8 (right to respect for private life and home). Sacharuk v. Lithuania (no. 39300/18, 23 April 2024) concerns the conviction of a parliamentarian after the end of his term of office for voting for another parliamentarian who was absent with the latter’s identity card. The applicant complained, amongst others, that his conviction had not been foreseeable as he was the first parliamentarian who had ever been convicted for voting in the place of another member of parliament, which up until then had been the “tradition” or working practice. The Court observed that the opening of a criminal prosecution against the applicant had been based on a legal provision which was in force at the time when he committed the impugned offence and has not been changed since. The Court accepted the applicant’s claim that his criminal case had had no precedents, as parliament had never before decided to refer the matter of the breach of the principle of a single vote to a prosecutor for investigation within criminal proceedings. However, the Court could not find that the authorities’ attitude towards such a practice of voting in parliament amounted to a “conscious toleration”, which would be capable of superseding statutory law. In criminal proceedings, a court had to follow the letter of the law, rather than “wrongful practice or precedents contrary to the law”. Article 7 of the Convention is not incompatible with judicial law-making and does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen. The applicant may have fallen victim to a novel application of the concept of a legal provision, yet it had been based on a reasonable interpretation of the statutory provision and had been “consistent with the essence of the offence. The Court did not discern any flagrant non-observance or arbitrariness in the application of the law in question to the applicant. No violation of Article 7 (no punishment without law). Sieć Obywatelska Watchdog Polska v. Poland (no. 10103/20, 21 March 2024) concerns an NGO’s attempts to gain access to diaries of meetings of two Constitutional Court judges and to that court’s visitors’ logbook. The request for information took place against the background of doubts over whether the two judges had met with a government minister whose status in criminal proceedings was being decided by the Constitutional Court. The Court found a violation of Article 10 (freedom to receive and impart information) of the Convention on account that the reasons for denying the applicant NGO access to the meeting diaries, which had been in the public interest, had not been sufficient. No arguments for restricting access, such as security or the protection of State secrets or private life of others, had been put forward to show that denial of access had pursued a legitimate aim or been “necessary in a democratic society”. The Court found no violation of Article 10 as regards the NGO’s access to the visitors’ logbook, which the Constitutional Court had not kept and had not been obliged to keep under domestic law. Allée v. France (no. 20725/20, 18 January 2024) concerns the applicant’s criminal conviction for public defamation following her allegations of harassment and sexual assault against a senior executive of the non-profit association where she worked, sent by email to six people from both inside and outside the association, with a copy to the vice-chair. The Court stressed the need, under Article 10, to provide appropriate protection to individuals alleging that they had been subjected to mental or sexual harassment. The domestic courts’ refusal to adapt the concept of sufficient factual basis and the criteria for assessing good faith to the circumstances of the case had placed an excessive burden of proof on the applicant, by requiring that she provide evidence of the acts she wished to report (for which the applicant alleged that they had been committed in the absence of witnesses). Also, the email, sent by the applicant to six people of whom only one had been an external party, had had only a minor impact on her alleged harasser’s reputation. Lastly, although the financial penalty imposed on the applicant could not be described as particularly severe, she had nonetheless been convicted of a criminal offence. By its nature, such a conviction had a chilling effect, which could discourage people from reporting such serious actions as those amounting, in their view, to mental or sexual harassment, or even sexual assault. Violation of Article 10 (freedom of expression). |
