Leading cases of the

CEDH
Johan Callewaert
Cline Kunnen

Introduction
Chapter 1: Objectives of the course
There is few provisions in CEDH and so these have to be interpreted. Thats why its
important to focus on cases. The casebook is the basis of the course and of the exam.
We will meet 10 times for three hours.
No perfect English is required. This is no language class. We expected to understand.
The examination is written but mistakes in English are not considered. We can use our
own words.
He will post on icampus notes about the judgment seen in class for facilitating the
understanding and preparation of the course at home.
Exam: post-it ok, underlying and colors ok, no annotation, no words, no numbers.

Chapter 2: Basic notions

Section 1: Court
Independence / Impartiality (a. 21 2-3 and a. 6 CEDH)
Rule of law: judge should apply the law and should not be guided by other
considerations. It goes without saying in the convention but its a basic principle. The
law and nothing but the law, as opposed to arbitrariness.
Binding judgments (a. 46 1 CEDH): there is relationship between authority and
judgment.
o At international level, what is the mechanism who get sovereign states to do
something? The legal basis of the binding effect is the provision in CEDH by
which the consent of states about the binding effect implies this binding effect.
A state can regret his consent to the court authority. That is a specific
mechanism where states are sovereign states.
o These judgments have they preference over a national judgment? The position
of the CEDH isnt the same in all countries. In Belgium, the hierarchy is
between normal law and constitutional law. Most states put the convention
between these two (Constitution CEDH Ordinary Law). In theory the
constitution of state has preference on convention. But there are countries
where there is for all ordinary law without constitution. This is the prospective
of domestic law. This is not relevant! The convention doesnt care of his
position in the state concerns. The CEDH said that his judgment is executive,
its all.
o Can a court judgment crush/annul a national judgment? The court judgments
are declaratory. What the court does is tell states if there is a violation or not of
provisions. Everything is fine if there is no violation. If there is a violation, we
will speak about the execution of the judgment. There is no efficiency of
judgment at domestic level.

Section 2: European

 Composition of the Court:

o 47 European Contracting Parties competence over about 800 million
Europeans (regardless of their nationality; see Art. 1: everyone within their
jurisdiction)
o 47 judges: 1 seat per Contracting Party (Art. 20)
o Appointment: by the Parliamentary Assembly (Art. 22 1)
Principle of subsidiarity: in the context of the convention, this concept has a specific
meaning. We can compare this concept with a safety net. The task of national
authorities is to apply the convention. The CEDH is spot over all domestic institutions.
The national courts have the duty to apply the convention. It should intervene only if
something goes wrong. Two consequences:
o There is one rule in the convention: rule of exhaustion of local remedies (a.
351 CEDH). You should have gone in every court in Belgium before going to
European Court.
o The Convention is not a uniform but a minimum standard (Art. 53) important
difference with EU law
o Whats the approach of the European judge? Its also a consequence to be a
European court: the fact that the European court leaves to the national courts
certain discretion. Its called margin of appreciation. Since Im only a
European judge, a subsidiary judge, that I have more distance to the fact that I
have to examine, I give the advantage of better assessment to the national
judge. The national judge is better placed, closer to the facts. The European
judge only intervenes if there is a violation of the ECHR. But, its not because
the European judge would decide differently, that he has to file a violation.
o Judgments: declaratory in nature (calan 210)
Authority: the Courts judgments are to be executed regardless of the place of the
Convention in the hierarchy of norms of the legal system of the respondent State
concerned.

Section 3: Human Rights

The Court only applies the Convention and his protocols: 14 different protocols.
Jurisdiction of the Court is limited to the rights laid down in the Convention and its
additional Protocols (Art. 19). There are like 30 articles very important when you put
the convention and protocols together. Its only 30 articles and they were laid down in
the 50 and havent changed. So the interpretation is very important. At the time there
are areas, which had no relevance but now its important like environment or data
protection. They are important areas today.
In addition to this, this effort by the court to interpret the convention in order to
develop the protection of some area is related to the fact that the court inspired herself
with other international sources, e.g. UN Convention on the prevention of torture.
Another source of inspiration is the UE Charter. Thats the living instrument
doctrine: the convention has to be applied in the live of present conditions (eg
Selmouni 101). Impacts:
o Scope of the Convention: e.g. Art. 8 interpreted so as to cover
Protection of the environment (Lopez Ostra)

 Protection of personal data (Rotaru)

Migration issues
o Standards of protection: increasingly high, greater firmness (Selmouni
101)
o Nature of the duties imposed
Potential violations (preventive effect; Soering)
Positive obligations (e.g. duty to protect under Art. 2: Renolde,
neryildiz)
Other (international) legal instruments: used as an important source of inspiration (eg.
UN Convention against Torture (see Selmouni, Soering), EU Charter).

Part I: Article 2 and 3 CEDH

Chapter 1: Right to live and Prohibition of torture
Section 1: Article 2
The article 2 of the convention is the right to life. This provision is not entirely up today
because of some circumstances of today.
The first sentence of 1 is still up today but the following sentence isnt because it refers to
death penalty, which was in application at the time. But now, it has changed. The death
penalty is now outlawed. Even in the country where the convention isnt ratified, even in
those the death penalty isnt applied. The contracting country has also to refrain himself to do
an extradition when the person risks death penalty in that country. The first country we think
about is USA.
The paragraph 2 requires some attention to. The a) refers to self-defence. We have a number
of scenarios where nobody can be killed on condition that the use of force is no more than
absolutely necessary. Is this an absolute prohibition? The protection of life as stated in article
2 isnt absolute. There are strict conditions linked to him. The European Court is very strict
but if the conditions are met, the use of force isnt rule out! It is in contrast to article 3.

Section 2: Article 3
This provision is providing for no exception and no derogation. It is an absolute prohibition,
even in the face of disaster. Ex: terrorism/

Section 3: Contrast between them

Isnt strange that the provision protecting life can be subject of exception whereas the article
3 cannot? Do we have an explanation for that? Is that a paradox or not?
The context in which article 2 allows an exception to take life is a context of defence and
protection.
The article 3 provides for prohibition of some kind of treatments: torture, inhuman treatment
or degrading treatment. Its just a matter of being cruel, no defence or protection. Thats the
explanation of the contrast between these two articles.

Chapter 2: Renolde v. France, 16 October 2008

Section 1: Facts
Somebody was in detention pending trial (detention preventive) and he suffered from
psychiatric disorders. At some point, he tried to slash his arms. He was supplied with
medication twice a week but no attempt was made to ensure that he actually took it. He was
put in a cell alone and at some point he assaulted a warder. He was put in a punishment cell
for 45 days. Soon after, he was found hanged in his cell.

The consequence was that the prosecutor did a number of investigations. A medical report was
drawn up and this medical report brought up that was no medical trace of the medication he
had to take. He decided not to follow the treatment.
Then his relatives also tried to start proceeding against the authorities. No charges were
brought against the officials who acted in the context of that story. The French Court said that
the appellant was himself to blame and there was no negligence from the authority.

Section 2: Complaints
The sister of the applicant has done a complaint first about a violation of article 2 of the
convention but also about a violation of article 3.

Section 3: Right to life of article 2

1. Principle
66: The sister did not accept this judgment and went to Strasbourg.
80. The state authorities should refrain from doing something, like taking life. Its a negative
obligation. Its the starting point. The convention offers protection against states.
80-81. This has been extended to a positive obligation. The enjoyment of many of rights of
convention requires positive acts by states. This positive obligation is protecting people. M.
Renolde needed some protection against himself. Protection can have many different forms:
protecting from suicide or protecting from other prisoners, etc.
82. It should remain reasonable and possible.

2. Application to the present case

85: key words of the test:
Knew OR ought to have known
If so, could REASONABLY have been expected
89: its the answer of the first question: the authorities knew or ought to have known the
suicide? Yes, they knew.
90: So, we have to examine if the authorities have done everything for prevent the risk.
Firstly, the court at 91-93 point some acts of the states.
But, the 94 signals the factors pointing in the opposite direction.
The 95 point a case: the court signals that the authorities have at least to discuss the
possibilities.
So there are 3 problematic factors:
95-98: No consideration was given to admitting applicant psychiatric institution
99-105: Absence of supervision of whether applicant actually took his medication
106-109: Application was given the most severe disciplinary penalty with no
consideration given his mental disorder.

 109-110: its the conclusion. The authorities failed to comply with their positive obligation
under article 2, so there is a violation. The conclusion is pretty obvious. Its the combinations
of these flaws that led the court to conclude that there is been a violation.

Section 4: Prohibition of torture of article 3

1. Principle
There are three ill-treatment, which are prohibited and have different degree:
1. Torture
2. Inhumane treatment
3. Degrading treatment
Its the same regime of prohibition. Torture is the worst treatment. Why then distinguish
them? Firstly, torture is a special stigma and if a judgment says that a state had tortured
somebody, its very hard for the image of the state and its very bad. Secondly, the
consequences are that the sanction is different related to the treatment. The compensation is
different if there is a torture or a degrading treatment.
The notion to have in mind is the threshold of severity (seuil de gravit). He has to be
reach to enter in the scope of article 3. This threshold will depend on the circumstances. Ex:
the threshold in respect of children is much lower than the threshold of adults because of the
vulnerability of the child.

2. Application to the present case

124. Maximum penalty imposed without consideration of applicants mental state or of the
fact that it was his first such incident.
125. Prohibition of all visits and all contacts with other prisoners.
126. Anguish and distress during that period.
129-130. Penalty not compatible with the standard of treatment required in respect of a
mentally ill person inhuman and degrading treatment violation.
132. Article 41 CEDH considers the compensation (damages in case of violation) as just
satisfaction. However, you have to ask for damages but the sister didnt submit an application
for damages.
The focus of the Court is on the violation of article 2. The State had to protect this person, and
see that this person take his medication. The vulnerability and the fact that no consideration
was given to his condition, that package conducted the Court to conclude to the violation of
article 2 and 3.

Chapter 3: Selmouni v. France, 28 July 1999

It speaks about police violence. The major difficulty is to prove that what you suffered
occurred from police officer. 87 until 89 It involves article 3 ECHR.

Section 1: Facts
This is a case of ill treatments in France near Paris. The applicant in this case was a Dutch
national who was charged of drugs trafficking. He was arrested by the police and then
submitted to an examination and a questioning by the police. The police questioned him for
like 4 or 5 days and claimed to be ill treated seriously by the police officers while being
questioned. He managed to be examined a couple of time by a doctor during these times in
police custody and at the end of his stay in custody, he was brought before an investigating
judge on the charge of drugs trafficking. It was that investigating judge who noticed that he
had bruises and scars on his body and ordered a full body examination of Selmouni. The
reports by the doctors were rather devastating in what they found in terms of traces of ill
treatments over his body. Then, the applicant lodged a criminal complain together with a
joined proceeding as a civil party (plainte avec constitution de partie civile). He started a
whole set of proceedings but at the end, the police officers were imposed very light sentences.

Section 2: Prohibition of Article 3

1. Principle
There are 3 forms of ill treatments are prohibited by article 3:
Degrading treatment
Inhuman treatment
Torture
This is an absolute prohibition. Why is it absolute? Of course the first reason is because of
the import of that value to be protected. But there is another reason: there is no second
paragraph allowing exceptions; there would be no legal bases for any exceptions because
nothing is being provided for.
This is one essential feature of article 3. The other one is that for article 3 to become
applicable, what we need is the minimum level of severity (= threshold). The treatment has
to reach a certain level, has to become relevant.
Now talking about the minimum level of severity, this minimum level is relative: we came
across that idea when reading the case of Soering. What was the argument or the
consideration put forward in connection of the relative character of the level of severity? At
the time of the facts, Soering was only 18 years of age (this is one consideration). Another
consideration is that he had a psychotic disorder (mental state). Well see in another case the
fact that every kind of special vulnerability due to circumstances may be relevant in applying
article 3 (for example: people in jail are in a state of vulnerability and that can impact on the
standards that youll apply in article 3). That means once that threshold is reached, from that
moment on, the prohibition is absolute whether the ill treatment you speaking about is a
degrading treatment, inhuman or torture, the absolute nature of prohibition is the same.

2. Application to the present case

In a case like this, what is the first difficulty facing somebody who claimed he have been the
victim of ill treatments by the police? To prove it. He had to chance to be examined by a
couple of doctors during his stay and during his questioning and then the examining judge had
a doctor examining him and a report had been drawn. The doctor concluded that they were
visible injuries on his body and they had been sustained at the time, which corresponded to
the periods of police custody. So what we have here are reports indicating a number of
injuries but the reports dont indicate who did it. How do we prove who did it? The fact that
the doctor indicated that the injuries were sustained at the time when he was under the control
of the police and this is a very important piece of information.
If you look at 87, you find an important rule that has been established in 1992 and been
applied by the Court ever since: if an individual is taking into police custody in good health
but is found to be injured at the time of the release, the state has to provide a plausible
explanation how those injuries were caused. This is a specific technic of proving things: there
is a shift of the burden of proof combined with a presumption (renversement de la charge de
la preuve). In the fate of the medical report and the findings that the injuries were sustained
at the time of the police custody, you have a shift of the burden of proof, its for the
government to explain how that could occurred. If they fail, there would be a presumption that
the State is responsible because of the actions of the police officers.
88: the Court considered that the facts claimed by the applicant were established. Proved
beyond reasonable doubt (=au-del du doute raisonnable): it isnt absolute certainty. Its a
high standard but not certainty.
91: the question being addressed by the court is the question about the gravity of the
treatment complained of. We assume for the purpose of that case, that the threshold has been
reached and then we deal with the question whether we are in the case of a degrading,
inhuman treatment or torture.
95: this is very clear. Insist on the formulation even in the most difficult circumstances.
From times to times, in Strasbourg, the Court is confronted with claims by governments in
situations in which they find themselves in are very difficult (like fighting terrorism). In case
of fighting terrorism for example, we maybe should make an exception of the article 3s
provision. The typical example is Saadi v. Italy. Saadi was a suspected terrorist who would be
deported to Tunisia. In the case of Saadi, you had an intervention by the UK government (a
third party intervention) in support of Italy. The UK government came to argue before the
court the fact that when you are dealing with suspected terrorists, it should be possible to
balance the risk for the individual concern if she/he is being expelled in a country when there
is a risk of ill-treatment and the other hand, the risk for the society (the one is living in) in
term of its security. The court said no, this goes against the absolute nature. If you accept that
idea, this is the end of article 3. The court was very firm on this and the UK government was
really disappointed. Saadi was a major occasion to revisit this idea about the absolute nature
of article 3 in the context of suspected terrorist and the Court said no. You find the reason
given by the court in 138 (key ). So this is one example of the implication of this absolute
nature.
Article 3 makes no provision for any exceptions. Reference is being in 95 made to article
152 of the Convention. This is the possibility to derogate in case of emergency threatening

the life of society. You could hardly imagine more serious circumstances than the ones being
referred to article 15 and yet article 15 does not allow any derogation to be made to article 3
even when the life of the nation is in danger.
96: the Court is trying to see what we are facing in Selmouni (is it degrading, inhuman
treatment or torture?). It involves a kind of assessment on the notion of torture. So the Court is
saying this is a special notion involving a special stigma.
97: the Court draws inspiration from the UN convention on torture. Its not the first time that
the Court refers to international law for the interpretation of its provisions. The Court is very
open to international law inspiration sources and the UN convention against torture is
certainly one of them. The court quotes the UN convention and more specifically article 1.
What are the essential elements of the notion of torture?
Severity: it must be severe (pain or suffering)
It could be physical or mental (example: Al Saadoon: extreme mental suffering).
Another typical example is that we have a number of Turkish cases where inhabitants
of the village had to witness the burning of their houses by the army for supporting the
PKK. This goes well beyond the threshold.
Intention
Number of purposes
Involvement by state through public officials either they do the dirty work themselves
or tolerate that other people do that kind of dirty work (public officials know about it).
There is a sort of public involvement.
99: applying this to the present case, the court comes to a conclusion.
100: the Court wants to investigate whether maybe torture is involved here.
101: very important paragraph in that judgment. The court is saying that what is important
here is this reference to the fact that the convention is a living instrument that must be
interpreted in the light of present day conditions. This idea has been used by the past by the
Court to extend the scope of the convention in areas which were unknown at the time the
convention was set up (like the areas of protection of environment and the protection of
personal data) for the reason that it is a living instrument that has to be kept relevant to
modern society by the Court.
This is another example of using this living instrument in the sense of raising its standards and
in the sense of raising its scope: that means here for the court being more firm when assessing
inhuman or degrading torture or torture. Another example of the raising of the standards by
this Court based on the idea that the convention is a living instrument is Salduz.
102 103: summary of what happened to Selmouni.
104-105: it is the combination of both (physical and mental violence) considering as a whole
that caused severe pain and suffering. Such conduct must be seen as torture, thats the
conclusion. In reality, the judges of that chamber were shocked at seeing what had happened
and what could happen in term of police interrogations in France. Why qualifying torture
rather than degrading treatment? One consequence is that a filing of act of torture justifies a
higher compensation. At that time, the judges were shocked and granted an amount of

compensation, which was well beyond. This is a way for the Court to stress the fact that
something is shocking with the consequences that a high compensation is being rewarded as a
message to the state authorities that they have to be vigilant in the respect of article 3.

3. General comment on article 3

Article 3 is an absolute prohibition. The limit of the Convention is the European territory.
The State needs to be part of the Council of Europe. One condition to be member is to be a
democracy State. Belarus is an exemption and the other exemption is the Vatican (the holy
see).
What happens often is that they are confronted with request of extradition to third
countries? Or some contracting States decide to expel to third countries. Problems if they are
indication that in the third country, the person could be ill threated. There is an indirect
responsibility of the State. The problem is that a contracting State could find itself in a
situation where it is oblige to expel to a country where the person could be ill threated. This
third State threated ill the person, not the contracting State. It is the fact of exposing a person
to such a risk. The exposure is prohibited, and this is a consequence of the absolute
prohibition of article 3 ECHR.

Chapter 4: Soering v. UK
There is one last aspect involved in article 2 that we havent addressed yet: the death penalty.
This case Soering v. UK will make the bridge between article 2 and article 3 of the
Convention. Article 3 is the prohibition of torture and inhuman treatments.

Section 1: Facts
Soering was a young German man who had a girlfriend living in the USA (in the state of
Virginia). They spend some time together in the USA. Somehow, Soering killed the parents of
his girlfriend and then managed to escape. He was arrested in the UK. After the American
authorities learnt about this, they immediately asked for his extradition to Virginia. The
problem with this extradition from the point of view of the UK was the risk that he could be
imposed the death penalty.
In Virginia, the death penalty was still imposed and carried out. So the UK authorities had
some misgivings about what may happen to Soering and before extraditing him, they wanted
to get some assurance from the USA authorities that the death penalty would not be imposed
in case of prosecution of Soering. The answer by the American prosecutor was that they
would take note of the wish of the British authorities that no death penalty should be imposed
but the prosecutor reserves the right to nonetheless seek the death penalty.
So the British authorities were a bit hesitant but in the end, the competent judge allowed this
extradition. They were hesitant because of the weakness of the response in term of a
commitment from America. It is then after exhausting the remedies available to him in the UK
that Soering addressed himself to the European Commission of Human Rights who was at the
time the body who prepared the work for the Court.
The Commission immediately made use of the provision of the rule of the Commission under
which they could ask the authorities of a contractive party to suspend the execution of a
measure planned to be taken pending the outcome of the proceeding.

10

Section 2: Article 2 and 3

1. Complaint
The claim by Soering was a two-fold claim. He was on one hand relied on article 2 but also
on article 3 for a very specific reason.

2. Applicability of article 3 to extradition

In term of a European Convention on Human Rights, we are faced with situations where the
issues lie in the USA because the USA are not bound by the ECHR. We could never say to the
USA that on the base of the ECHR, please refrain from using death penalty. This happens
outside of the territorial scope of the Convention. Do we apply the Convention to the USA or
to the UK? To the UK. But what the Court says about that?
In this case, we have first complains about treatments that are expected to take place outside
the scope of the Convention. And secondly, the death penalty has not yet been imposed. It is
prospective, in the future. At the time, it was something very new for the Court.
85: about the first problem: treatments taking place outside the scope of the Convention. The
first finding of the Court in aspect of that problem is that fact extradition as such is not
prohibited by the Convention. Extradition becomes relevant under the Convention in case it
entails a number of consequences that will be contrary to a provision of the Convention. The
problem is not extradition as such which is not prohibited but its the potential consequences
of extradition that may be seen as contrary to the Convention depending on the circumstances.
What if adverse consequences are expected to arise in a third (receiving) State?
86: rather important. Article 1 of the Convention set a limit notably territorial on the reach of
the Convention. The message here is the Convention is primarily about opposing a number of
standards within the jurisdiction of the contracting parties, that jurisdiction is mainly
territorial so there can be no question either for the Convention to oppose standards to third
country (to the USA) or to impose on the contracting parties an obligation to get third parties
to apply full range of the Convention articles in the receiving country. That would be too
much for the Convention. But on the other hand, its not because third countries are not
obliged to apply the whole Convention that they are no exceptions to that.
88: why is it that the Court seems ready to make an exception as far as article 3 is
concerned? What is the specific nature of article 3? It is its absolute nature. Its the only
provision of the Convention providing from no exceptions. The consequence of this
prohibition being absolute is that (and its already stated in the UN Convention against
torture) it provides that no one can be expelled in a country where there is a high risk that this
person will be subjected to torture. Its already a general standard laid down in a UN
Convention and this UN Convention is being referred to in the judgment.
Then, starting from there, drawing inspiration from this UN Convention, the Court draws
consequences for the interpretation and the handing of article 3.

11

The first step reported in the light of the UN Convention has to of course acknowledged that
article 3 is not explicit on either people can be extradited or not. Nonetheless, the Court says it
would not be compatible with the values of the Convention to accept extradition if the
application has to face torture. If the UN Convention doesnt accept, we certainly should not
accept either. That is as far as torture is concerned.
89: article 3 prohibits not only torture but also inhuman and degrading treatments. The next
step is that the Court extends this prohibition of extradition to the whole range of article 3: not
only for torture but also for inhuman and degrading treatments. The obligation to not extradite
also extends to cases in which the fugitive would be facing in the receiving state real risks of
exposure of inhuman or degrading treatments. We are not talking about the whole range of the
provisions of the Convention but specifically about article 3 because of the importance of that
provision and because of its absolute nature.
90-91: then we have the fact that the violation of article 3 claimed by Soering will take place
in the future. Potentials violations are the exception. The standard mission of the Court is to
find out either any violation has taking place in the past or not. And then says yes a violation
took place and a compensation has to be paid. But violations in the future are not the
standards situations. Nonetheless, what is the obvious problem? What is the risk if you stick
to that position that only violation in past can be filed by the Court? The risk is a risk of
irreparable damages. In the field of article 3, in the field of an absolute provision, its a risk
that the Court is not ready to take. If we really want to article 3 to remain effective and
absolute, we should also be able to prevent irreparable damages from happening. If you have
extradited somebody to a country where there is some risk, and that risk happened, you can
file a violation of article 3 but the damage is done and you cant undo it. That is the reason
why the Court sorted for a way to avoid that risk. So the common situation is the file of an
actual violation (in the past) and the exception, is a violation in the future for preventing
purposes where there is a risk of irreparable damages, un the sake of preserving the
effectiveness of the convention and the absolute nature of article 3.
Now what is the challenge for the judge in a situation like this? To prove it. The key notion
here is the notion of the risk. In this judgment, the court refers to a real risk. But this is easiest
said than done to assess the risk. If you accept that there could be a potential violation, then it
can work with the combination of the notion of risk. But its a difficult assessment. For
example, if somebody claims that he/she would be torture in Iraq, then of course, I have in
Belgium to assess what the reality is in Iraq, what the risk is against the standards set by
article 3.
The Court says that there is no question of adjudicating on establishing the responsibility of
the receiving country. If a violation has been found, it is the responsibility of the European
state expelling or extraditing. So what is being sanctioned by the Court is not the act of torture
being carried out by a third country but the exposure of the person to the kind of treatment by
an European country.
There is some extraterritorial responsibility involved in article 3 (exception to the territorial
scope of the Convention) and there can be a potential violation in contrast to the classical
situation that is the filing of a actual violation.

12

3. Application in the present case

What the link with article 2? In this case, Soering didnt face torture but the death penalty. But
the problem of Soering at the time was that the death penalty as such was not banned by
article 2. So at the time, the death penalty was not prohibited and he couldnt say that if you
extradite me, Ill be executed in America because the Convention didnt prohibit that. He had
to find something else and this is why he relied on article 3 on this absolute prohibition in
article 3. He first said that the death penalty as such is a form a degrading treatment prohibited
by article 3. That argument was said aside by the Court because you cant prohibit in article 3
what is allowed in article 2. So this argument was dismissed. But the second argument by
Soering was to say that if he is extradited, he will be charged with murder and the risk will be
the death penalty. And he will end up in the death row for many years. He was relying on his
personal situation to argue that his stay for many years in the death row could be inhuman
treatments (article 3). By proving that, he could indeed successfully prevent extradition from
happening.
99: risk of death penalty + death row phenomenon established.
101-103: however, risk of death penalty no legal obstacle to extradition.
104: cannot be interpreted as prohibiting generally death penalty. However, the manner in
which it is being imposed and the way leading up to the death penalty can raise an issue in
article 3. We may think its a bit artificial to say death penalty as such is ok but the way
leading up to that death penalty is a problem. We might be right but these are the limits of the
interpretation of the Convention.
In fact, Soering was successful because the rest of the judgment is addressing the
circumstances awaiting Soering in the death row and among the circumstances being referred
to by the Court, there is the length of the detention prior to the execution, the condition on
death row and also applicants age and mental state.
111: in the present case: minimum level of severity reached potential violation.

4. Conclusion
In the end, the consequence of that potential violation is the prohibition by the state to proceed
that extradition. So the British authorities were prevented from extraditing and they
communicated this result to the American authorities saying that the condition for the
extradition of Soering was that they should end up into a firm commitment not to seek the
death penalty. We can see the difference. After the judgment, the hands of the British
authorities were tied and they said if you want Soering, you have to promise not to apply the
death penalty. That promise was delivered and the extradition took place. Soering is still in
jail but his life is safe.

Chapter 5: Saadi v. Italy

Facts: The person had to be expelled to Tunisia. There would be a violation if extradition
because there would be ill treatments against the person. UK participated in the case, and it
made the case for a balancing of the treats. The Court never reduced the standards of his
protections, but that was what was asked by UK.
137 (138-142): the Court does not change his standards.
13

Chapter 6: Gafgen v. Germany

One of the issues involved in that case is certainly again the absolute nature of article 3
but in a whole different context.

Section 1: Facts
It all began in 2002 when the applicant killed by suffocating a young boy who at the
time was 11 years old. He hid the corpse near a pond and then demanded from the parents a
ransom. The irony of that case is that the accused was a law student and a friend of the
family. Shortly after collecting the money, he was arrested and questioned by the police
because they were convinced that the boy at that time was still alive.
He refused to speak, kept silent, and the police officers were a bit desperate. A chief
police officer (refers as Mr. D) thought that giving the circumstances he was allowed to threat
the applicant with very serious pain in the event he would not reveal the place where he had
hidden the boy. He had thought it through and one morning, he gave the orders to one of his
officer to afflict him serious pain. As the consequence of that threat, he then revealed where
the boy was hidden. Then the police went immediately with him to the pond and found a dead
corpse.
As a consequence of this kind of confession, they found a piece of real evidence such
as tire tracks Then, of course, there was a trial and Gafgen was sentenced to a life sentence
in prison.
The story in Strasbourg began by the application brought by Gafgen. He complained
of a violation of article 3 of which he said he had been victim because of the threats and a
violation of article 6 (provision about fair trial).
The chief police officer was he right? Can it be justified with the purpose of saving the
boys life? The short answer to that question is no. The article 3 is absolute. There is maybe a
practical consideration => we enter the area of inhuman. Article 3 has something to do with
cruelty. The practical consideration is what will be the limit?
94: the facts are explained.

Section 2: Judgment
What is the heart of this case? What are the main issues in this case as far as article 3 is
concerned?

The issue of the threat: is the threat already considered like ill treatment? Ill
treatment can be both physical or psychological treatment. Like in the Soering case, ill
treatment isnt limited to physical treatment. This is confirmed in 91 of Gafgen. The
threat must be real and immediate. It must be consider seriously. In the case of
Gfgen, the Court considered that it was an immediate and real threat. The reasons are
given at the 101 and following. 103: deals with the effects of that threat with the
applicant.

Burden of proof.
14

The attitude of Mr D. and the justification he gave for his order to use threat of severe
pain. Can it be any justification since it is uncontested that the police sincerely
believed the boy was still alive and they only had a chance to save his life if they had a
quick confession. Giving the attitude of the applicant who decided to remain in
complete silent, the police decided to overcome that silent and to get a confession in
time for the boy to be saved. Thats the issue being discussed over and over again
during weeks and at the time this case was being heard in Strasbourg. In fact he
enjoyed a lot of understanding, empathy by the media and by public opinion in
general. At that time the boy was already dead but they didnt know that. Thats
explained why at a very early stage of the proceeding in Strasbourg, the German
government had already acknowledged that in their opinion, there was a violation of
article 3. They didnt go into too many details about article 3 but they confessed that
indeed it was wrong for Mr D to have done that. But the domestic consequences in
Germany for D were very limited. He was hardly sanctioned, they were disciplinary
proceedings against him but he got only very light fines. He was hardly punished for
facts that in the eyes the German government was serious enough as to involve a
violation of article 3.

87: about the absolute nature. In general opinion, the crime committed by Gafgen was a
heinous crime. It is worth insisting on the facts that the extent of the protection (article 3)
cannot depend on the nature of the office committed by the victim of an ill treatment.
88: minimum level of severity
91: A threat of conduct prohibited by article 3 can amount at least inhuman treatment but not
necessarily torture. But there is a condition: it must be real (= lightly to be carried out) and
immediate (= not in the far future, being expected to happen soon). The Court considered that
the threat is in fact an ill treatment and she gives the reasons at 101 and 103.
94: The court then turns to what happened in this case. It was about finding out the
whereabouts of the victim. So, this is the threat element: it is uncontested that there was a
threat and this threat was about inflicting intolerable pain. At this stage, we are not inquiring
whether if it is torture or something else. We are just establishing the fact.
In the last sentence, the Court is checking the real character of that threat. Was the threat real?
Yes because it was a threat being considered by a police officer (the deputy chief officer).
Considering using a truth serum is something very serious.
Somehow the conditions listed in 91 are fulfilled in the present case and that allows the court
to come to the conclusion in 100.
The Court then turns to the question: is it torture or something else? What is the legal
qualification of this treatment?
101/ 105: in terms of the qualification of the treatment at issue, a number of criteria are
being listed by the Court and among these criterias: we have duration, effect, intention,
purpose and context. At the heart of the case is the purpose: can it be a justification for what
happened? That the police attempted to save the life of the boy?

15

103: the Court accepted that the threat is sufficiently real and immediate. But the police was
thinking that it was necessary for saving the boys life. The German public opinion was
reluctant that the police officers had to face the consequences of their threat. The absolute
prohibition of article 3 is very difficult to swallow. Moreover, the pain inflicted to the officers
was very symbolic.
107: the courts point of view is empathic to the purpose of the police (key at 177). No
derogations are allowed even in case of public emergency threatening the life of the Nation,
even if there is a ticking bomb. Indeed, the police officers wanted to act rapidly. You can
see here great firmness with philosophical references. The philosophical base is in fact the
moral base: it cant be seen as acceptable or as right for a person to inflict severe pain or any
form of ill treatment to another person. It is considered as the foundation of mankind and
civilization. It is considered as belonging to the foundation of civilization.
Article 2 of the Convention at that time allowed death penalty and allowed the taking of
another person life in the context of specific actions. The Convention sees a huge difference
between taking another persons life and inflicting severe pain. It worth reflecting on this: we
might consider situations where the state and officials may have to take another persons life
for the stake of protecting other persons maybe but inflicting severe pain goes beyond the red
line.
108 (end): the Court considered that since the threat is real and immediate and since it
reaches the minimum level of severity, it is to be considered an inhuman treatment without
however reaching the level of cruelty required for the threshold of torture.
132: conclusion for article 3: there was a violation of article 3 of the Convention. The Court
came to the conclusion that indeed the threat was sufficiently real and immediate and the
treatment was sufficiently serious as to come within the scope of inhuman treatment, without
however being torture.
Passage in the judgment about the victim status: there was a whole issue in Germany. The
argument by the German government was that the applicant couldnt complain anymore in
Strasbourg because they had done the job, they had punished the responsible police officers so
the applicant had lost his victim status. The court answered that they maybe acknowledged a
violation of article 3 but the punishment imposed on the police officer was ridiculous, it didnt
show a real intent to prosecute and to punish the violation of article 3. At the end, the
applicant didnt lose his victims status, he was still in position to complain with
consequences that violation of article 3 was found.
The applicant loses his victim status if the judicial authorities have already punished the
person responsible. But, the authorities have to redress: (1) compensation to the victim and (2)
in a case like this (breaching a key provision), there also should be prosecution of the people
responsible. On both count, the response by German state was insufficient. It appeared that
the judicial authorities in Germany had delayed the proceedings instituted by Gafgen to obtain
compensation. That showed their unwillingness to do so.
177: This paragraph makes a link between the article 3 and 6 (fair trial). Effectively, firstly
we have the inhuman treatment (threat), secondly we have the confession and finally we have
the real evidence. Then in the proceeding of the Court, we have a second confession.

16

But the defence of Gafgen was to say that these real evidences were only found thanks to the
first confession, which was obtain by ill treatment. So the confession had to be off of the trial.
The evidence was the fruit of the poisonous tree. The ill treatment has contamined the all
proceeding.
The Court said that they can follow them until the first confession but they leave the real
evidence, which is entirely objective. It was there. The Court said that it was an exclusionary
rule. The case law distinguishes the statements (dclaration) and the real evidence (lments
de preuve objectifs).
Statements obtained beyond any kind of treatment are directly out.
For the real evidence, this isnt clear clarified yet. What is clear is that the real
evidence obtained trough torture is out. But about the real evidence obtained trough ill
treatment or degrading treatment, the Court still hesitates. We can read this at the
175.
175: The Court is hesitating if it is obtained through inhuman or degrading treatment. Why
this difference? The Court is hesitating: on the one hand and on the other hand. Indeed,
the Court considered also the right to the victim to have a fair trial. The Court hesitates
because of the effective prosecution of crime. Effectively, the real evidences are very
important.
178: The key notion is incentive. If the use of ill treatment has no consequences for the
availability of evidence, it will be an incentive to the police officers to not respect the absolute
prohibition. The effective protection against these methods may require the exclusion of any
kind of evidence obtained beyond a violation of Article 3.
The real evidence is now secured. That leads us to the second confession.
178 end and 180: we can see a breach in the causal chain. The question arises is: Why he
has done a second confession?
183: the reason for the Court to accept this second confession. It was his lawyer who told
him to do this confession because the lawyer himself was shocked by the facts. Attention, if
there was torture, everything would be out of trial. The second confession is accepted only
because there is just ill treatment.

17

Part II: Article 6: Right to a

fair trial
Chapter 1: The scope of article 6
En fait, c'est contraignant sur le plan du droit international, parce que les tats membres
ont accept en ratifiant la Convention de se soumettre au contrle de la Cour (article 46
de la CEDH), mais ce n'est pas contraignant au niveau interne en vertu de la
souverainet tatique (la Cour n'a pas la comptence pour faire excuter le jugement
dans l'ordre interne), le jugement est excutoire parce que les tats auront transpos les
enseignements de la Cour dans leur ordre interne Et le jugement de la Cour a un effet
dclaratoire parce qu'elle agit titre subsidiaire (elle ne revient pas sur les faits de
l'affaire) et parce quelle laisse libre choix aux tats dadopter les moyens qui
permettront une rparation de la violation dune ou plusieurs dispositions de la
CEDH.
This is the most invoked provision in Strasbourg. It has two branches: a civil branch / a
criminal branch. The scope of article 6 is limited to proceedings whether civil or criminal
within the meaning of the Convention. That means that for the interpretation of these notions
(civil and criminal), the Court is not relying entirely on domestic notion. Why is that? Before
asking the question why, we have to mention that this kind of interpretation according
standards which are typical for the Convention or typical for the Court, has a name: the
autonomous interpretation.
The autonomous interpretation means that the Court is using its own criteria. Its not that the
domestic criteria are being set aside completely, they serve as a base. The court is drawing
inspiration from the domestic categories. But the domestic categories are not the final word.
Why? Because it cant depend on national specificity and the notion being used by the Court
must be capable of being understood and applied in each of the 47 contracting States. So, the
court has to develop notions that are applicable and being understood in each of the
contracting states. Linked to that, there is also the fact that if states or state authorities saw
that specifics categories or specific notions given to procedures would suffice to remove them
from the scope of article 6, it would be very tempting. You should avoid the situation that just
by giving a specific name to a kind of procedure, that procedure suddenly will be removed
from article 6 and this is something that the Court doesnt want. The trend in the Court
interpretation of that provision has been to extend as much as possible the scope of article 6
and thats the reason why you should not think that the scope of article 6 in civil branch is
limited to civil proceedings in the narrow sense. The civil includes also large parts of
administrative proceedings, proceedings concerning social benefits, large parts of
constitutional proceedings.
These notions are being interpreted by the Court in an autonomous way and the trend in the
Court case law is to extend the scope with the effect that in the end there are only very few of
categories of procedure not being the subject of article 6. Two major examples of proceedings
not being the subject of article 6:
18

Expulsion of foreigners, migrations proceedings: its unfortunate because these are

proceedings where very often a lot is at stake for the people concerned and yet, they
cant benefit from the safeguards of article 6.
Tax procedures not because the Court didnt make an attempt to extend the scope of
article 6 to that procedure but because of the textual argument (the wordings of a
protocol).

The judge has to be impartial. Its inherent of his role. He has to apply the rule of law and has
to be independent and impartial.
There is a subjective test (repression and hostility), which is presumed.
There also is an objective test (trying to exclude any doubt). There are two criteria: a
link between the judge and the parties or anything (for example, a lawyer become a
judge so he cant be the judge of the case) and the function (a judge in the first
instance and the same judge in appeal).

Chapter 2: Rights
Section 1: Notions
In term of the content of article 6, there are 3 big in that provision:

1: is about both categories of procedures (civil and criminal). So the safeguards,

which are laid down in 1, apply to all kind of procedures covered by article 6
(criminal and civil).
You have two parts in that :
o Explicit part: rights which are laid down explicitly
o Implicit / inherent: which have been brought existence by the Court through
interpretation of article 6

2: only on the presumption of innocence.

3: which contains safeguards applicable only to criminal procedures. Two parts:

o Explicit part
o Implicit part

Why is it that in 1 and 3 the Court was allowed to develop or bring to existence more
rights? Why is that the Court was not bound by the wordings of article 6? The right we are
talking about is the right to a fair trial and the content of that right and the provision of that
right are specifications or aspects of the right to a fair trial. Thats why the Court considers
that when necessary, it must bring to existence the inherent rights.
If you look at 1 and you try to identify the explicit rights, you can see that there is:
The independent and impartial tribunal
Oral and public hearings
Public delivery of the judgment
The reasonable time required
But there are few implicit rights:

19

Equality of arms: in the civil case law on article 6, its very important. Its not to be
confused with another notion, closed to it, the right to an adversarial proceedings
(droit une procdure contradictoire).
The right of access to a court (i.e. presence of state or parliamentary immunity)
Reasoned decision (Taxquet)
Legal aid in civil procedures

If you look at 3, the explicit rights are:

Information about the accusation
The right to have time and facilities for the preparation of the defence
The right to defend oneself or the right to have legal assistance
Rights in relation to witnesses
Right to an interpreter
The implicit rights are:
The right to appear in person before the Court as an accused.
Right to remain silent as an accused (the right no to have to give incriminating
evidences as an accused)

Section 2: Kress v. France

Two key principles of the right of a fair trial:
1) Equality of arms
2) Right to adversarial proceedings
Its a case about a medical error but the main reason why it came to Strasbourg is in relation
to these two principles. The initial procedure was an administrative procedure following a
medical error, which occurred in the Strasbourg hospital.
In this judgment, the Court makes a clear distinction and explains what it is meant by those
two principles
72: about the equality of arms. There should not be a substantial disadvantage between the
parties. This should not be confused with the right to an adversarial proceeding.
Two elements are important here:
(1) The context in which that principle applies (equality of arms against whom?): Its in
relation to the opponents.
(2) The content: not being placed at a substantial disadvantage vis--vis the opponent.
74: right to adversarial proceedings. Its description is in 74. Comparison: equality of arms
is between the parties. The right to an adversarial proceeding is vaster than the relationship
between the parties. Right to be informs about and comment on all evidence and observations
filed even by an independent member of the national legal service. It is the task of the judge to
inform us and give us the opportunity to comment about. Long time ago, this was not the case
in Belgium, before the Court of cassation. So here it concerns all the evidence and all
observations admitted to the file. In criminal proceedings there are exceptions.
Two elements:
(1) Context: all evidence adduced or observations filed even by an independent member
of the national legal service. The context is broader: its about all the evidences in the
file and also about observations filed by an independent member of the national legal
20

service. Whatever is in the judges file, whatever has been submitted by whoever must
be disclosed to the parties with a view to allow them to comment on that.
(2) Content: for the parties to have knowledge and comment.
73: conclusion on the equality of arms: both parties are treated the same way, no unbalance
between them. Therefore there is no breach of the equality of arms.
76: Regarding the right to adversarial proceedings, at that time, before the Conseil dtat,
there was the possibility for the parties to be, on request, briefly informed about the opinion of
the commissaire. They had the possibility, if they wanted to comment on them, to file a
memorandum for the deliberations. So, in concrete terms, they could become proactive, asked
le commissaire du gouvernement for a few words of information about his opinion and then
on the basis of that, file a memorandum. The question of the Court was whether the
possibility to file a written memorandum for the deliberation was good enough and could
considered a valuate substitution from an intervention at the end of the hearing? They could
react in written form but not at the hearing. Was that good enough? The Court said it was
good enough.
In this conclusion, we have both elements: possibility for the parties to have knowledge
before hand if they asked the commissaire du gouvernement and the comment element in a
form of a written memorandum.
Therefore there was no violation of article 6 on account of these two elements in the present
case.

Chapter 3: Consequences of non-compliance with art. 6

Is any breach of any of these provisions lead to a filing of a violation of article 6? Is it
automatic?
The proceedings have to be considered as a whole because the right that is at stake is the right
of fair trial. Its a lot to do with the circumstances of the particular case. The ultimate test is
the proceeding as a whole because the fairness of proceedings can only be assessed at the end
of the whole right. Its only at the end of proceedings that you can say that considering that
right and that right, it has been fair or not.
You find that idea expressed in Gafgen again (164-185-186). So here you have a number of
criteria in light of which the fairness of proceedings as a whole is being assessed by the Court:
Other additional evidence available in support of the conviction
Rights of the defence respected? Possibility to challenge the evidence?
No arbitrariness in the evaluation of the evidence
Its not because a violation of a right of article 6 has been breached that automatically this
provision will be violated. The test is the proceeding as a whole and among the criteria for
this assessment, you have these categories that are listed in 164.
There are however exceptions to that rule (proceeding as a whole). Which kind of breach will
give rise to an automatic violation of article 6? If you have a breach of article 3 in obtaining
the evidence, thats the end of the story and that was exactly the claim by Gafgen in his
proceeding in Strasbourg. He said that not only he had been a victim of a breach of article 3
21

because of that threat but the evidence they obtained because of his confession had been used
against him and they contaminated the rest of the procedure.
The key notion in respect of this problem is expressed in a name of a theory: the fruit of the
poisonous tree. The poisonous tree here is the use of investigation methods in breach of
article 3 and the question is whether the fruit of that tree is contaminated or not and can be
used or not. That rises the question to what extend a criminal Court must be apply an
exclusionary rule (= when contaminated evidences have been banned from the file).
There is another exception to that rule: its Salduz.

22

Chapter 4: Consequences of a breach of article 6

If we have a kind of automatic violation, what happen then?

Section 1: Ocalan v. Turkey

210: the principle is the declaratory nature of the judgment. What does that mean? It
means that all the court does is filing a violation, that the convention has been breached but
without ordering the authorities to do this or that, without enjoining the domestic Court to
take specific measures. The measures to be taken by authorities to execute the judgment are
left to them to decide, they have the choice of the means. So that leaves to the state concern
quite some room for manoeuvring.

Section 2: Other applications

However they are limits to the choice of the means: one limit that has been recently recalled
by the Court is the requirement of diligence (= you cant put off the execution of a judgment
by referring to the fact that you have the choice of the means). That happens with Belgium
when Belgium had to execute the Marckx judgement given in 1979. Almost 10 years later,
they still hadnt executed the Marckx judgement and the explanation given by the Belgian
government is that they had the choice of the means. It was too long and Belgium got
sanctioned for that.
When there is a violation, the Court awards a just satisfaction that is compensation. The
leading case for that compensation is to be found in article 41 of the Convention.
In some cases (208 Ocalan), the Court suggests or indicates that they should be for the
applicant the possibility of getting a re-trial (rouverture de la procedure). In the majority
of the States including Belgium, this possibility is given at least in case of criminal procedure.
But its only if the applicant accepts. But this is a more recent development compared to
previous affairs; the Court is more explicit in suggesting a retrial.

Chapter 5: Requirement of independence and impartiality of the

judge
Section 1: Independence and impartiality
Independence of a court: results of the separation of powers. It means that there should be no
interferences by government in the dealings of the judicial system. Thats one of the problems
that we had couple years ago in Belgium with Fortis gate.
Impartiality: judges must be neutral, absence of prejudice.
Why is independence and impartiality so important? What is undermined as soon as you have
no independence and no impartiality? What does go lost if you see that the judge is not
independent and impartial? The judge loses its authority because you lose your trust. The
main purpose of the impartiality and the independence is the confidence that the judicial
needs in order to establish its authority with public opinion and with the accused. The judicial
only keep its authority only if its being trusted and its only be trusted if public opinion can
assure that the judge in front of him will decide the case only on the basis of the rule of law
23

and not on the basis of any personal preconceived opinions. There is an obligation for the
judges to give reasons for their judgment and its necessary in order to preserve the trust of the
citizens in the judicial.
How should it be detected?
They are two ways of detecting a lack of impartiality. There is a direct and an indirect way:
The subjective test: The expression of the judge. It is obvious. It will be an expression of
hostility often. This expression is rare. Here it is a direct way but it will occur rare.
=> The impartiality will be presumed until prove of the contrary.
The objective test: It consists in trying to exclude any doubt in light of objective
circumstances. The appearances will play an important part. Ex: a spaghetti lunch, the
existence of a link (hieratical or personal), a combination of functions (different functions
incompatible).

Section 2: Kyprianou v. Cyprus

1. Facts
This case takes in place in Cyprus (common law system) and they have in common law the
institution of the contempt of court (manque de respect lgard de la cour). In common
law countries, this is an institution permitting a Court to sanction any behaviour, which is
likely to disrupt the cause of justice and proceedings before a court. In this case, the judges
used that institution to sanction the applicant. The applicant was a lawyer and he, at some
stage, was representing and defending somebody who was accused of murder. He was crossexamining a witness for the other party when he got interrupted by a judge of the bench. He
got irritated and asked for the permission to withdraw. This permission was denied and he
overreacted because he started criticizing the behaviour of the bench. The reaction by the
bench was also some sort of overreaction (felt deeply insulted). Next, they found Kyprianou
to be in contempt of court and sentenced him of 5 days of jail enforceable immediately. They
said that it was the only adequate response.
Kyprianou, as a lawyer, exhausted the domestic remedies in Cyprus and then came to
Strasbourg where he invoked a lack of impartiality of the bench, which had convicted him for
contempt of Court.

2. Judgment
118: the Court distinguishes between two approaches:
(1) Subjective: its about endeavouring to ascertain the personal conviction or interest of a
given judge in a particular case (to look into his mind). Its about a judges conduct. Is
there anything in the courts behaviour revealing its bias? Is there anything in his
behaviour that raises doubt as to his impartiality? But this is quite rare. This is why
adds to this subjective test (which is very difficult to apply in practice), an objective
test.
(2) Objective: determining whether he or she offered sufficient guarantees to exclude any
legitimate doubt in this respect. This is about guarantees sufficient to exclude any
legitimate doubt. This has lot to do with appearances.
119: in term of the subjective test, we see that the subjective impartiality is presumed until
proof of the contrariety because its something really difficult to prove. We find examples of
proof of the contrary in 119 and that is hostility/ ill-will demonstrated by a judge. In the eyes
24

of the Court, these kinds of overreaction and the comments made by the judges are a clear
expression of subjective lack of impartiality.
121: Objective impartiality: examples. The typical situation of lack of objective impartiality
is the one where we have different functions exercised by a same judge at different stages of
the proceedings. When the same judge sit in different capacities at different states, that can
really raise an impartiality problem not so much because the judge misbehaved but because of
the appearances.
118: However, not every kind of doubt is legitimate, is sufficient to cast doubt on this
objective impartiality of the judge. So its not because the accused said that he/she has her
doubts that its sufficient to cast doubt on a judges objective impartiality. The Court said that
the objective impression of the accused is not enough to upset the whole thing, it has to be
objectively justified, it must be supported somehow by an objective justification. Doubts must
be shared by other people and not only by the accused. It looks a bit complicated but its
rather simply in fact.
121: two possible indications: the existence of multiple functions and the existence of a link.
This is for the objective test. The two test are analysed by the court in this case.
127: objective test. In the present case, the key word is the confusion of roles between
complainant, witness, prosecutor and judge in their own case. The conclusion is that there is a
functional institutional defect, which leads to justify fears as regards of the judges
impartiality.
128: In term of the subjective test, the court is listing elements on the concrete behaviour of
the judges. The relevant elements being identified by the Court are the fact that the judges
openly said they felt deeply insulted, the language used by the judges, the sentence of five
days enforceable immediately, which is slightly disproportionate and then there is the fact
even before they started the trial, they considered the applicant guilty.
130: subjective test. lire. The court is here stressing that the behaviour of the bench was
lacking, hostility, the sanction, the judges even before discussing the contempt of court had
expressed their view and this before they had deliberated
132: Identify as an element of these judges behaviour the speed with which the proceedings
were carried out and the brevity of the exchanges between the judges and Kyprianou.
133: conclusion of the subjective test

Chapter 6: Article 6 in criminal proceedings

Section 1: Timeline of art. 6 in criminal proceedings:
1. Suspect
2. Arrested (aussi garde vue ou detention provisoire)
3. Indictment (mise en examen), a consequence is that you are an accused
4. Trial (procedure au fond)
5. Judgement
6. Ordinary remedies (recours ordinaires: appeal and cassation)
25

Section 2: Salduz v. Turkey

Guarantees for criminal proceedings in article 6
The Court gave that judgment against the background of comparative law research report on
the situation regarding the legal assistance by a lawyer as from the first interrogation. The
Court dealt with that situation against the background of a comparative law report and this
report had indicated that out of all of the contracting states of de Counsel of Europe, 39 states
already had and applied the system which is being now demanded by the Court in Salduz.
This assistance of an accused by a lawyer as from the first interrogation is something, which
was already being applied in the time of that judgment by up to 39 states. This is another
example where the Court raised the standards of the Convention but the Court felt that it was
comfortable to do.

1. Facts
Its about a young boy who participated to a demonstration in support of the PKK. He was
arrested, was interrogated, he confessed during the interrogation by the police and in the end,
through different instances, he was convicted to two and half years imprisonment. The critical
point was the fact that his conviction was based on the confession he made during the police
interrogations even though after that police interrogation, he had withdrawn his confession.
But his confession was kept in the file and served as the main piece of evidence for his
conviction.

2. Introduction to the issue

When does article 6 in its criminal part start applying? As from the moment a person is being
charged. The key notion is criminal charge.
Now what is the key concept in connection with interpretation of convention concepts?
Autonomous interpretation that will also be applied on the notion of charge. If we didnt
apply this interpretation, we would have the problem of different meanings, different notions
according to the legal system in which you apply them and you could also have a number of
legal systems trying to reduce the impact and the scope of article 6 by saying that an accused
is charged at a much latter state with the consequence that whatever comes before would not
follow under the scope of article 6.
What about the detention? You have of course what can be called an official charge and this
would be the latest point in time where article 6 starts applying. But it can also take other
forms where in fact the charge is implicit and one of these forms is the detention. So if you
start detaining a person that triggers the application of article 6. That is of some importance
because in Belgium, there is some confusion about the interpretation of Salduz: suggestion
that the right to assistance by a lawyer from the first interrogation is only for detained people.
Its almost correct but the detention is not a condition sine qua non for the application of
article 6.

3. Judgment
50: gives us some information on the scope of article 6 in criminal proceedings. Its quite
interesting whats being said.
We discussed the start of the applicability of article 6 and we said article 6 applies from the
26

moment there is a charge. The notion of charge is not a formal one but a material one. It does
not depend on a formal indictment. What amounts a charge in a material sense is the
notification by public official to a person that this person is suspected of having committing a
criminal fact. One of the most common forms of charge in the material sense is detention (=
the fact that a person is arrested on the base of that suspicion).
So article 6 starts with a charge in the material sense. Then at some stage, you have the
beginning of a trial and maybe youll have an appeal, then an appeal on point of law
(cassation). Now 50 is discussing about the period between the charge and the trial because
article 6 protects the right to a fair trial. It does not follow that article 6 has no application to
pre-trial proceedings. In Belgium, for instance, the typical example of pre-trial proceedings is
linstruction. 50 is saying that is not because Im talking about fair trial that article 6
cannot be applied to what precedes that trial, in particular the work of the investigating judge
and the work of instructor tribunal. So, article 6 is perfectly capable of applying to pre-trial
proceedings but if and so far as the fairness of the trial is likely to be seriously prejudiced by
an initial failure to comply with its provisions. Its not an automatic applicability; its not
necessarily applicability with the full range of safeguards. Its an applicability to the extent its
necessary to preserve the fairness of the trial, which will follow. One of the essential stages of
this pre-trial proceeding is certainly the interrogation by the police, by the investigating judge
and hence the insistence of the Court on legal assistance by a lawyer for any accused being
interrogated either by the police or by the investigating judge. That is the explanation why this
provision on the legal assistance is considered to be applicable to the phase of the
interrogation of the accused.
52: explanation of that approach. So what is the explanation given by the Court for the
applicability of that right to legal assistance as from the first interrogation of a suspect by the
police? Its an explanation drawn from every day practise. The key notion is decisive (because
of the decisive nature of what happen in the first interrogation). Indeed, every defence lawyer
will confirm that a lot happens in terms of decisive evidences during the first interrogation
just because a suspect is, most cases, highly intimated at being interrogated by the police and
its at this stage of the proceedings that the accused is most vulnerable, most in need of
assistance by a lawyer. Thats the reality and thats why the Court insists on the needs for legal
assistance as from the very first interrogation.
When does it end? When the remedies have been exhausted, when the judgment has become
enforceable the rule of the proceedings as a whole. This also the reason why it is
considered in the case law that an appeal can cure any procedural mistakes or flaws at an
earliest stage of proceedings. In Kyprianou, there was also a passage to the effect that the
appeal court havent cure the defect which had happened at first instance in the context of the
contempt of court proceedings which were initiated against the applicant. That was another
example of this rule according to which depending on the circumstances and depending on the
flaws, an appeal can cure defects, which happened at an earliest stage. Just for our
information, in civil proceedings, the execution of a judgment falls also within the scope of
article 6. In certain western European countries, you have marvellous judgment, which are
never been executed. So an applicant can be awarded damages against the state but he will
never get them. If as an applicant you have the benefit of a judgment, you are entitled to
damages but you cant enforce your judgment against the state, this is also a violation of
article 6. Its part of the fair trial to have the right to have your judgment executed. Here in
this judgment, its not relevant because the execution of a criminal sentence is the job for the
state and not for the individual.

27

52 second sentence: however this right has so far being considered capable of being
subject restriction for good cause (). This is the heart of the discussion about Salduz. We
agree to the fact that article 6 can apply to pre-trial proceedings and that this may involve
assistance by a lawyer during police interrogation. Here you can a description of the former
case law and there the emphasis in this sentence is on the notion of good cause. There could
be restrictions to the right to legal assistance during police interrogation for good cause. So
when people say that prior to Salduz there was no right to assistance by a lawyer as from the
first interrogation by the police, this is not correct. It has always been the case that assistance
by lawyer can be necessary as form the first interrogation; the only difference being is that in
the past a restriction could be justified for good cause where as now, the emphasis is on
compelling reasons (raisons imperatives). This is the raising of the standards by the court: not
the fact that it was impossible for a lawyer to have to be present but what has changed is the
nature of the justification capable of permitting a restriction to that right. The Court moves
from good cause to compelling reasons (= much more restrictive approach).
Of course this restrictive test needs to be justified by the Court because for some countries
including Belgium, it was quite a jump. The Court does so in 54.
54: Everything is being explained in that . What is the justification? Because the police
have always been likely to be decisive for the outcome of criminal proceedings. What is the
novelty? Why now tied up the conditions for a restriction to that right? The answer by the
Court to that argument is to be found in that . There is number of considerations being put
forward by the Court:
(1) The importance of the investigation stage
(2) The vulnerability of the accused
(3) The complexity of legislation including legislation of criminal procedure
The Court sees a problem in respect of these elements: right to remain silent or the
right no to incriminate oneself (key right in article 6). Its specifically for the purpose of
protecting that right, protecting an accused from being pressured into making confessions
by police officials, by an investigation judge that the Court considered that the only way
to protect that right, giving the extreme complexity of criminal legislation, is the help of a
lawyer.
(4) Protection against ill treatments during interrogation. The fact that a lawyer is present
during interrogation limits the risks of ill treatments during interrogation.
The emphasis in terms of what has changed compared with the times where good causes were
sufficient to justify restrictions to the legal assistance is the increased complexity of criminal
legislation and in connection with that, the raised need to protect the right to silence of the
accused in such context.
55: The first sentence says that as from now, its only if there are compelling reasons to
restrict that right that this restriction can be justify under the Convention. But to the teachers
knowledge there hasnt been a case in the Courts case law where the Court has accepted any
compelling reasons. So, its a very restrictive test.
The Court goes on saying that even when compelling reasons may exceptionally be justified
denial access to a lawyer, such restrictions whatever its justification must not prejudiced the
right of the accused in article 6. Does that mean that with compelling reasons, you can
restrict the right to a fair trial? No, even if you have compelling reasons, even if you restrict

28

the right to access to a lawyer, the proceedings as a whole must be fair. If the right of the
defendant are seriously prejudiced because of that absence of a lawyer, you have to think of
compensating that in any other way because the end result must be a fair trial despite the
absence of a lawyer at first interrogation.
Last sentence: so the scenario being considered here is that we have no lawyer during the first
interrogation but we have compelling reasons, this statements made without a lawyer is being
used for a conviction, does that mean that article 6 will be automatically breached? No. That
means that we always have to consider the proceedings as a whole and well consider in
principle until proof of the contrary if a statement made without a lawyer is used for a
conviction, article 6 will be breached. Its a presumption of irretrievably prejudice when a
statement made without a lawyer is used but its rebuttable (presumption simple).

4. Issues currently being discussed in Belgium in connection with the new

law
We have the benefit of a recent judgment by the Belgium constitutional court (Valentine
Judgment) on this Salduz law, judgment in which number of provisions have been quashed.
1. The notion of access to a lawyer: the notion most commonly used by the Court is the
notion of access. Link to that, there was a discussion about whether access was to be
identified with assistance by a lawyer and whether you could consider that on the base
of the Salduz case law, the lawyer had to be present during interrogation. We had a
number of commentators who said access is access and that means consultation and
that consultation can take place before the interrogation. Access does not mean the
lawyers presence during interrogation is required. The result of follow-up cases to
Salduz said that access is really to be equated with assistance. In Strasbourg, judges
were quite surprised at seeing that the notion of access to a lawyer was interpreted in a
restrictive way. What they had in mind was the assistance in the full sense of the term.
In terms of whether there should be presence of the lawyer during interrogation, the
answer on the basis of Strasbourg case law is yes. There are follow-up judgements
confirming the fact that the lawyer is expected in article 6 to be present there during
the interrogation. You have a hint of that principle in 56. This is being restricted in
the Belgium law: for an accused who is not detained, presence of a lawyer during
interrogation is not provided for the reasoning being that he is not detained and so he
can stand up, go away and then consults his lawyer.
2. Should the lawyer have a right to intervene during the interrogation? The
Belgium law says not really, only in rather exceptional circumstances. Is that in
conflict with the Salduz case law? The mere present of the lawyer will probably
prevent the interrogator from pressurising the accused into making a confession. As
long as the right to silence during the interrogation is not put in danger, the lawyer has
no reason to intervene.
3. Is the right to legal assistance limited to accused who are in detention? Is the
detention a condition sine qua non to enjoy the right to legal assistance? What is the
triggering event for the applicability of article 6? Is it the detention or is it the charge?
The charge. In 98% of cases, there will be a detention and this arrest will be
considered the charge. But do we need an arrest to have a charge? No. So, the fact is
that in 98% in of the cases, the accused will be in detention. But theoretically, we
could think cases where there is no detention and still a right to legal assistance.
29

Maybe not in Belgium but in other countries. There is a case against the Ukraine
where the accused go the visit of the police at home. In that judgment, the Court does
not take a stand as to whether the person is already charged but you could imagine
situation where as the Ukraine, you get the visit of the police at home and they come
and ask you a number of questions. In a situation like this, if you feel that you may be
facing difficulties, the teacher thinks that you could argue that you have a right to legal
assistance in article 6 and that you have the right to silent until lawyer comes. What is
triggering the applicability of article 6 is not the detention at such but rather the
charge. As long as the charge is the detention, everything is fine. But you have
situations where you have a charge in the material sense without a detention.
The Belgium law is not entirely safe in the sense that the full range of rights in
connection with legal assistance is made dependant on detention.
4. If there are no compelling reasons to restrict access to a lawyer during first
interrogation but the proceedings as a whole can be nonetheless considering as
fair, would there be a breach of article 6? If the statements being made without a
lawyer are not in any way used for a conviction then the problem does not arise. The
safest way to avoid any problems with the Convention and with the Strasbourg Court
is to remove from the file anything, which has been obtained without the assistance of
a lawyer. But if you have in the file, a statement made without assistance by a lawyer,
used as the basis for a conviction without compelling reasons being invoked and with
a domestic judge saying that the proceedings considered as a whole have been fair, is
that ok? The answer is being found in 55: the possibility of proceedings as a whole
being nonetheless fair is envisaged after and only if compelling reasons have been
validly invoked. Access can be denied only if there are compelling and even when
such compelling reasons are invoked, the proceedings as a whole have to be fair. If
you have no compelling reasons, the safest way to avoid a violation of article 6 is to
remove that statement for the file.
5. Whether for a statement without assistance of a lawyer to be unsafe for a
conviction, must it be the sole basis for the conviction or the decisive basis? Would
it be acceptable for a statement made without a lawyer to be use for a conviction if it is
being supported by other evidences? That is the approach by the Belgium law. The
Belgium law said (that changed since the Valentine judgment) that a statement made
without a lawyer was nonetheless safe for use as basis for conviction if there was other
sufficient evidence in support of that statement. Is that compliant with Salduz? 55:
Salduz refers to the simple use of a conviction. Is that the use as the sole basis or as a
decisive basis? The mere use is already too much. A statement made without a lawyer
is unsafe from the very moment it is used basis for the conviction, whether as decisive
basis or not.

5. Conclusion
58: idea that other safeguards could possibly cure the defects, which occurred in relation to
one specific safeguard, which has been disregarded the curing of defects on basis of the
proceedings considered as a whole. But it was not sufficient to compensate for what had
happened in term of prejudice to the rights of the defence.
62: conclusion taken in light of the principle of the proceedings as a whole. Its a
presumption of irretrievable prejudice, which has to be tested in the light of the circumstances
(= possibility for Salduz to challenge his statement and the possibility of any defect being
30

cured before the appeal court) but it was not enough to compensate for the prejudice. Indeed,
in many cases, the initial statement and the initial evidences being gathered are often decisive
for the rest of the proceedings.

Section 3: Taxquet v. Belgium

1. Facts
Taxquet was convicted of 20 years of prison for the murder of a former minister and
attempted murder of the ministers partner. That happened following proceedings before the
assises court which were conducted according to the old procedure. The main feature, which
was at the heart of this case, was the fact that at that time the jury was not required to give any
reason for that verdict. It was quite dramatic for Taxquet because he was convicted to 20 years
of prison just on the basis of yes or no given by the jurors to just 4 questions concerning
the charges against him, which on the top of it were drafted in a very general way. He
complained about that in Strasbourg. The funny thing is that we had a first judgment in the
case of Taxquet given by a chamber of the Court and that chamber said no way; now the time
has come to require that also a jury in assises court proceedings should give reason for its
verdict. So, the first judgment was about giving reasons for any jury verdict. That was stated
as a general rule and it is on the basis of that first instance judgment that the reform in
Belgium was carried out with the results that the jury after having decided on the verdict
meets with the court president to draft the basic reasons for which they came to that verdict.
This judgement caused some sort of revolution in other countries. In other countries with a
very long standing jury tradition (like the UK, Ireland and Norway), that judgment causes
some sort of revolution: no way can we expect lay jurors to give reasons for their verdict
because that runs against the very essence of the lay jury which is that they are not lawyers,
they cannot be require to give reasons. And that is one of the reasons why the case was
brought before the Grand Chamber. Before the Grand Chamber, it took longer for that case to
be decided than any other cases (several drafts). The remarkable thing is this a grand chamber
judgment given unanimously. Sometimes its possible to bring together in some sort of
compromise very different traditions (the continental legal tradition of giving reasons for a
judgment and the common law tradition which is not to give reason but to proceed in a
different way so as to make people understand why the jury decided in one way rather than
another way).
The final message of that judgment is that every judgment should be understandable. The
reasons why a judgment has been decided in one sense rather than another sense must be able
to be understood. You can do that through giving reasons (continental tradition) but you can
also do that otherwise. So in other words, according to the final version of Taxquet, reasons
are very good, but not absolutely indispensable. Taxquet would not change the tradition of the
common law countries and from this perspective, the reform in Belgium went beyond the
requirements of the Strasbourg case law. Belgium has done more than excepted by the
Strasbourg Court because the reform was based on the chamber judgment which was
mitigated by the grand chamber, which in fact shifted the emphasises from reasons to be given
to make the judgment understandable one way or another.

2. Interests
What are the different interests being served by the fact that judges have to give reasons?
(1) To prevent arbitrariness: its through the reasons that the accused and the public at
large can be satisfied that the judge decided according to the rule of law. You can
31

(2)
(3)

(4)

(5)

check whether he proceeded according to the rule of law or according to any other
strange principles.
For the accused to see whether his arguments have been heard with the view to
usefully appeal. Its only if you know the reasons given by the judge for his decision
that you can usefully challenge them.
Addressing the concern of the public. The public must be able to see what kind of
arguments are being taking into consideration. What does the public need to have in
respect of the judiciary? Its about confidence. How do you build confidence? If you
want confidence, you need transparency, meaning you have to be able to see how
things are going and how matters are being decided. Transparency is based on
understanding the reasons. Giving reasons is somehow displaying transparency, is
being transparent about your thinking and why you decided in a case in one sense
rather than in another. The need to give reasons is not only about the accused to be
able to understand why he has been convicted and how he can usefully challenge a
conviction, there is also a general concern which is that the public has to have
confidence in his judges, in his judiciary. Its about building confidence through
transparency.
The right of the defence (implicit aspect). Giving reasons is also a way to assure
respect for the rights of the defence. Its more relating to procedural issues. If you
make a number of procedural pleas in a course of proceedings, if they are accepted or
rejected, you have to be able to understand why they have been accepted or rejected.
It somehow forces judges to build their judgment according to the rule of law and on
acceptable legal arguments. It imposes a certain kind of discipline on the judges
(90-91).

3. Judgment
90: ok for the exception for not giving reasons BUT the accused and the public must be able
to understand. If you can understand then it is not arbitrary. It is to preserve confidence what
is the basis for authority of the judiciary. Here it is regarding the product (decision,
judgments) that also should ensure confidence. Confidence regarding the impartiality and
regarding the judgment what must be understood.
The Court is saying there are two possibilities:
1. Proceedings before professional judges: we just need reasons
2. Proceedings before a lay jury (non professionals): they are dispend to give reasons but
nonetheless, the verdict must be understandable. There are three means which the
court considers acceptable:
- Guidance given by the presiding judge.
- Questions to be answered by the members of the jury. The questions should be
sufficiently specific so to make it possible for the accused to understand.
- Appeal. The insufficiencies appeared in first instance could be cured in appeal by
instance by questions.
In this case, the questions (4) were general and Taxquet could not understand why he was
sentenced to 20 years of prison.
92: the alternative means that the Court has in mind when requiring that a judgment should
be understandable are first guidance to be given by the presiding judge to the members of the
jury during the proceedings (this is more addressed to the jury itself).
The main means that the Court has in mind to the benefit of the accused would be the
questions to the jury. Here there were only 4 questions concerning the charges against Taxquet
32

but the Court, in other parts of the judgment, is referring to other cases where they were many
more questions and many more detailed questions which were answered by the members of
the jury. The Court is referring for instance to the Papon Case about crime against humanity
where there were 800 questions to be answered by the jury, which make things much more
easier for an accused to understand why he was convicted and on the basis of which
circumstances. The idea is that if you have a sufficient number of sufficient specific and
precised questions, then at the end of the day, as an accused, you can find out why you have
been convicted.
In this case, only four questions were submitted to the jury and that, according to the Court,
did not allow him to understand why first instance the jury considered that the murder was
premeditated. That was nothing in term of an explanation why and on the basis of which
circumstances they had considered that the murder was premeditated rather than anything
else. Thats for instance one of the circumstance which the court here held against the assises
Court. Then the Belgium government said yes but there was also the indictment that also
contained a number of details on the basis of which Taxquet could know. The Court said that
the indictment comes before the opening of the trial and the whole development of
proceedings with the witnesses being heard and other statements being made are not reflected
in the indictment. That cannot serve as a sufficient and valid basis for the applicant.

Section 4: Hermi v. Italy

1. Facts
The applicant was a Tunisian national in Italy, was arrested in possession of heroin and
criminal proceedings were brought against him for drugs trafficking. He was sentenced to 6
month of imprisonment. Then, the applicant appealed against that judgment.
At the hearing before the Rome court of appeal, the applicants lawyer applied for his client
to be allowed to attend the hearing. That application was dismissed on the ground that the
applicant had not informed the court in advance of his wish to participate in the hearing. The
Court of appeal upheld the judgement. The applicant appealed unsuccessfully on points of
law.

2. Violation?
At first sight, what kind of problem we would identify?
The absence of the applicant before the courts of appeal
A problem of communication between the applicant and the court on one hand and
communication between the applicant and his lawyer on the other hand. It seemed the
applicant wasnt probably informed about the date of the hearing so thats why he
missed the notice he should had given for him to be able to attend the hearing before
the Court of appeal and it seemed to have a lack of communication between the
applicant and his lawyer.
The first question is the participation of the hearing by the applicant, the problem being the
fact that we are talking proceedings before the Court of appeal. Of course we have the notion
of fair trial but we also somehow the duty for the authorities to speed up as well as they can
the progress of criminal proceedings. The presence of an accused at the hearing must serve a
useful purpose. If any kind of request to participate in any kind hearing was grounded and was

33

a right in article 6, the result could be a considerable delay in the progress of criminal
proceedings.
The second question is the problem of information. One of the problems in this case is also
the fact that the applicant is a foreigner, which raises in general the question of interpretation
and translation of material relevant to the proceedings. Hermi judgment is also about that
question. Linked to that question, we have the question of the role of the lawyer.

3. Judgment: participation of the hearing

58: does it mean that he has the right to appear to every trial against him? Not certainly. So
here we have a first distinction being made: whether at the original trial or in a re-trial. If the
first trial has been missed, then there should be something like a retrial
59: the court confirms that its something inherent to the right of a fair trial.
60: a first distinction is being made between the first instance and the appeal hearing (and
what its at stake here is the appeal hearing).
64: is the best starting point. In relation to appeal proceedings, where the Court of appeal has
to determine factual issues and law issues and has to make a determination as the guilt of the
accused, that requires presence of the accused. It can be however that the Court of appeal
does not have to decide on the full range of these issues (described in 60-61-62). In other
words, when the competence of the Court of appeal is less than determining factual issues and
law issues, it would depend on the circumstances and this a matter for discussion.
If you have a trial court (first instance court), deciding on the same issues (fact-law-guilt), do
you need attendance of the accused? The presence of the accused is required.

4. Judgment: information of the accused

Hermi missed his hearing, claimed not being well-informed by the authorities about the date
of the hearing and what the hearing was about.
We have few issues: the content of the information, the means to be used to inform the
accused about the accused and the language
We have two provisions on article 6 dealing with the information to be provided to an
accused. That is first article 63 a): its about information about the accusation and the
language in which that has to take place. And then we have 63 e) about the interpreter.
The content of the information? 68. As far as 63 a) is concerned, the Court is saying that
the information about the accusation being provided to the accused does not necessarily have
to be in written form and not translated in full except for the indictment. This is a key element
and that has to be provided in writing and translated if the accused is not capable of
understanding the language. Whats important here is the statement to the effect that not
everything has to be presented in writing and fully translated in every case. That would be
difficult to manage for most courts. So, the focus should clearly be on the indictment.
The question of the language: 69. As far as 63e) is concerned (the right to free assistance
of an interpreter), the scope of that right covers the oral statements but also documentary
34

materials and even material relating to the pre-trial proceedings. Why is that? We start
applying article 6 from pre-trial proceedings to the extent that it can have a bearing on the
further progress of the trial.
What are the conditions?
Person doesnt understand the language
Only documents necessary to ensure the fairness of the trial. That can differ from case
to case but the assessment to be made in each case is whether a piece of evidence is
important from securing the rights of the defendant.
70: can the interpretation be done in oral way or has it to be done in a written form? Here
again we have a rather cautious, restrictive approach and this suggests that oral linguistic
assistance may satisfy the requirement of the convention. Is it under these circumstances
enough for the domestic court to point an interpreter and then to consider that they have done
their job and nothing more can be expected from them? No because we have that principle of
the effectiveness of the safeguards under the Convention. Generally, the Court insists on the
fact that the safeguards laid down in the convention have to be effective and practical (last
sentence of 70). In the interest of the effectiveness of the safeguards under this provision of
article 6, its not good enough to point an interpreter. If the authorities have any to means to
see that there is a problem, then they have to intervene.
72: the ultimate guardians of the fairness of the proceedings are the domestic courts. Its not
good enough for the Court to say well you have a lawyer and sort it out with your lawyer. If
courts are informed of the facts that there is something going wrong either with the lawyer or
the interpreter, they have to do something about it.

5. Judgment: waiver
A very important question about article 6 is the issue of the waiver. When can an accused be
said that he waives his right to be properly informed? When can an accused be said to have
waived his right to get a translation? When can an accused be said to have waived his right to
assistance by a lawyer from the first interrogation? Can does rights be waived?
Could you waive the right of a fair trial as such? No because it would be too much to waive
but individual safeguards, maybe yes.
73: its possible to waive safeguards in article 6. Does it have to be an express waiver? No, it
can be tacit on the condition that it is unequivocal (not subject to doubts) and attended by
minimum safeguards commensurate with its importance. What could you think of in term of
minimum safeguards? Information about the consequences of the waiver. This is the first
safeguard before you can lawfully waive a right. You have to know what you are doing. What
is the privilege way of making sure that a person waiving his rights is well informed about the
consequences? If that person is attended by a lawyer. If a person waives a right in a tacit way
without any assistance of a lawyer, then you can have doubt as to the validity of that waiver.
And then there is another condition: it must no run counter to any important public interest (=
the fact that there might be situations where public interest opposes a waiver). There a not
many situation in article 6 but the kind of situation is a kind of waiver with a racial
background. There was a case where there was waiver assumed to be made by rom people and
the Court considered this waiver to have a racial background and considered that they could
not validly waive their right. It was a whole different context, it was a context to a right to an

35

education (send kids to proper schools). The authorities considered that the parents had
waived their rights to send their kids to proper adequate schools and the Court said that I dont
accept this because it had a racial background.

6. Judgment: How the principles we examined apply to the facts of the

case?
In Hermi, there were 3 problems:
1) The presence of the accused at a hearing before a court of appeal.
2) Problem of the language and in connection with that, the problem of a possible
interpretation needed by the accused.
3) Problem of the issue of the waiver of procedural rights.
The question under article 6 is to determine whether that conviction of 6 years imprisonment
in addition to a fine was lawful under article 6, whether the right to a fair trial was respected
or not despite the fact he couldnt attend the hearing before the court of appeal.
The reasoning of the Court is articulated according to 3 considerations:
(1) At first instance: did the applicant have the opportunity to attend the hearing before
the trial court?
(2) Competences Court of appeal: What are the competences of the Court of appeal? We
found out that there is one set of circumstances, which can occur in front of the court
of appeal where the presence of an accused is required in any event. If before the
Court of appeal, a determination is to be made on facts, on the law and on guilt, if in
other words the court appeal has extensive competences covering facts, laws and guilt
(64), then the attendance of the accused is required no matter what happened in the
first instance. What were the competences of the court of appeal in this case?
(3) New evidence: Whether any new evidence could be deduced before the Court of
appeal at this stage? New evidence is always related to factual issues.
On the first question, the answer by the Court is to be found in 77 and the Court finds that
the applicant attended two hearings before the Court of first instance. There is a slight
problem with these hearings: the problem was that these hearings were not public, contrary
whats being prescribed by article 6 of the Convention.
The conclusion is to be found in 79 and 81: the court considered that as far as the public
character of the proceedings are concerned, there is waiver because the applicant opted
himself for a summary procedure and in return for that, he could benefit a reduced sentence.
There was a waiver here.
On the second question, its being described under 84 and following. The two main
considerations to be kept in mind here is first the fact there was no question of facts being
discussed before the court of appeal. It was only about legal issues (legal characterisation of
the offence) and in connection with that, there were no new evidences to be expected. If new
evidences are to be examined, if new facts are to be discussed, this can be an argument in
favour of the applicant presence before the Court of appeal. But, to the extent that only legal
issues are discussed, this is more going towards considering that the applicants presence is
maybe not absolutely required.
The other consideration is the fact that the Court of appeal could not increase the sentence. He
had already had been convicted to 6 years imprisonment (86).

36

As far as the question about the new evidence is concerned, due to the fact that the applicant
was trialled in summary proceedings, the agreement was that no new evidences could be
produced by the prosecutor. So the applicant had nothing to fear in terms of new evidences
and that is another argument in favour of not considering the applicants presence as
absolutely indispensable.
On the basis of this, the conclusion of this examination is to be found in 88. This conclusion
owes a lot to the fact that we are dealing here with a kind of summary procedure before the
Court of appeal.
In fact the Court could have stopped here but to persuade every possible reader, the Court
goes on and takes this case as an opportunity to be clear about the responsibility of the
accused and his lawyer in a case like this ( 89). Even assuming that there had been a right to
attend, this right in the circumstances of this case was waived, maybe not explicitly but
implicitly:
The first consideration is that there was due information of the applicant about the date
and the time of the hearing.
The next consideration is (90 and 91) that the applicant had a sufficient knowledge
of the Italian language so he cannot claim to need some kind of translation about the
content of that notification and that have been evidences during the proceedings before
the court of first instance the hearing. He knew about the date of the hearing and he
could understand the notification.
The third consideration is the fact that on the other hand the applicant knew nothing
about the fact that it was for him to make an application within a certain deadline. It
was for him to apply to be allowed to attend the hearing before the Court of appeal. It
didnt so because he didnt about that, that it was he claimed.
Now comes in the consideration about the role of the lawyer (92-93). This is a kind
of criticism of the deficit in the legal representation of the applicant by his lawyer. So,
the Court says that its indeed regrettable that he was not informed through this
notification of the deadline for an application to attend the hearing but on the other
hand its not for the state to spell out everything at each step of the proceedings
because thats the role of the lawyer.
In this instant case, both of them knew of the deadline and the lawyers didnt do that
anything in that aspect, they didnt get in touch with the applicant for about two
months and he neither tried to get in touch with his lawyers. That has been a clear lack
of communication between the applicant and his lawyers.
The court position on this is in 96. So the message here is that we have two different kinds
of situations here, two categories of lawyers being considered here in this passage:
(1) Appointed lawyer: as far as the appointed lawyer is concerned, there is hardly any
responsibility on the part of the state if there are short-comings in the representation of
the accused by the lawyer. Its the accused responsibility to choose his lawyer, to pay
for him and to ensure that he is being provided with the services he can expect.
(2) Legal aid lawyer (lawyer appointed by the authorities to help the accused who has not
the means to pay himself for his lawyer): if on the other hand, the appointment has
been done by the authorities, then the situation is slightly different and that is the
second sentence of 96.
So there are two situations being considered here:
a. Shortcomings, which are manifest
37

b. Shortcomings, which are brought to the intention of the authorities by the

accused.
Then and only then the authorities may have to intervene to remedy the problem.
In the present case, the authorities bear no responsibility for the lack of communication
between the accused and his lawyer and consequently for the fact that he missed the deadline
(97)
The conclusion on this is spelled out in 102-103: the attendance of the accused before the
Court of appeal was not necessary for the purposes of article 6. Even if it was otherwise, the
Court considered that on the basis of the relationship between the accused and his lawyers,
and their respective conduct, one can validly conclude that the right to attend the hearing
before the Court of appeal have been waived by the applicant.

38

Part III: Article 5: Right to

liberty and security: Stanev
c. Bulgaria
Chapter 1: Introduction to the notion
Together with article 6, article 5 is the provision most frequently invoked in applications in
Strasbourg. Why? Article 5 is covering all situations where you have deprivation of liberty in
any possible form. Its the provision about setting the conditions for a lawful deprivation of
liberty, for lawful detention. Whatever may occur in terms of situations where persons are
deprived of their liberty, these situations are governed by article 5. There are many situations
and therefore case law on article 5 is rather extensive. There is police custody, pre-trial
detention, detention after conviction, detention of mentally ill people.
Its also the longest provision of the Convention with many scenarios and situations being
explicitly addressed by that provision. Its a rather complex provision. This provision had
being taken over as such by the EU Charter on fundamental rights.
The philosophy to be applied in respect of that provision is totally different from the
philosophy we applied under article 10. In article 10 (freedom of expression), its about
balancing different interests. In others words, article 10 and others provisions similar to article
10 allow a certain amount of discretion to be used by the national authorities. This is different
under article 5; its a provision where the rule is the strict interpretation of any exception to
liberty. Why? Because the basic philosophy is that liberty is the rule and deprivation of liberty
is the exception, with strict interpretation of the exceptions. We see that immediately when
reading the first two sentences of article 5: everyone has the right to liberty and security
().
Background : placement of a person of unsound mind in a social care home

Chapter 2: article 5 1
Section 1: Requirements of Art. 5 1 ( 143)
What follows the first sentences are a list of 6 possible situations where deprivation of liberty
is allowed, which can be considered as valid exceptions to the rule which is liberty of persons.
Its an exhaustive list. Of course, these situations are described in such a way that there is
room for a lot of situations within these scenarios. But still, its very clear from the wording of
that provision and its even more clear from the case law of the Court that the list of scenarios
allowing deprivation of liberty is an exhaustive list. So whenever a situation of deprivation of
liberty is not covered by one of these scenarios, that is already the end of the story, the
deprivation of liberty will be unlawful.
Well focus here on 3 different scenarios, more important scenarios in practise:

39

1. Letter a): the lawful detention of a person after conviction by a competent court. The
situation addressed here is the situation of a detainee after conviction, people lawfully
detained after a prison sentence.
2. Letter c): the focusing here is on the arrest or detention of a person on reasonable
suspicion of having committed an offence. This covers any arrest by the police
following a relevant indication that an offence has been committed and for the purpose
of bringing him before the competent legal authority. This is the provision covering
arrest and detention at a pre-trial stage.
3. Letter f): this is detention in connection with either immigration or deportation, in a
view of getting them out of the country.

1. Lawfulness

Under national law (substantial and procedural)

Quality of national law: no arbitrariness law should be accessible and foreseeable

in its effects

Necessity in the circumstances

Is that the only condition for a deprivation of liberty to be lawful? That the purpose at issue is
being covered? That the purpose for which the detention has taken place is covered in one of
these scenarios? Not really. So the first condition is of course to be within one of these
scenarios. But there is more.
In almost of all of these descriptions (from a to f), there almost all start with a kind of
emphasis on the fact that these deprivations of liberty have to be lawful. What does that
mean? When there is a reference to law, it entails two different things:
1. The first reference is being made to domestic law. For example, if detention is being
carried out here in Louvain La Neuve, Belgium law will have to be complied with.
2. But its not only about domestic law but its also about the quality of the law. The
domestic law also has to meet a number of substantial requirements. Not any domestic
law is good enough for the purpose of the Convention and can be considered law
within the meaning of the Convention. The quality of the law has a lot to do with the
fact that the Convention does not want the law to be arbitrary (>< rule of law). Only a
law, which offers safeguards against arbitrariness, is acceptable.
Arbitrariness is to be avoided in the first place through provisions, which are accessible. You
have to get a chance to get a hold on that provision that might be applied to you, where to find
the provision. Only provisions that have been published in the relevant way are considered to
be accessible. Once you have that provision, you should be able to predict what the effects of
the law would be on you, depending on your behaviour.

2. Exhaustive list of permissible grounds of deprivation of liberty ( 144)

3. In respect of mentally disordered persons: 3 minimum conditions to be
met (under 5 1 e):

Must be shown to be of unsound mind (through a medical expertise)

Mental disorder must be of a kind or degree warranting compulsory confinement

Persistence of the disorder ( 145)

40

4. Relationship between ground of permitted deprivation of liberty AND

place and condition of detention ( 147)
There is a third requirement: deprivation of liberty has to take place in accordance with a
procedure prescribed by law. That means a lawful procedure; it has to be compliance with
domestic law in terms of the procedure being followed (procedural requirement).

Section 2: Application in the present case

1. Procedure
No prior consent of the applicant placement not valid under Bulgarian law contrary to
Art. 5 ( 150)

2. Justification under Art. 5 1 e)

Objective need for accommodation and social assistance is no sufficient justification for
deprivation of liberty. Wishes of persons capable of expressing their will to be taken into
account ( 153)
Lack of recent medical assessment: sufficient to lead to unlawfulness of placement ( 156).
Severity of the disorder + need to protect the applicant or others not established ( 157)
Violation of 5 1 ( 159-160)

Chapter 3: Article 53
Article 5, 1, c): it refers to an arrest for an offence. The steps pre-trial:
Arrest by the police
Custody (garde vue)
Pre-trial detention or detention on remand (detention preventive)
The requirements for this arrest (article 5, 3 ECHR):
Any person arrested under article 5, 1, c) must be brought before a judge. There is a
period between the arrest and when the person comes before the judge. This period is
the custody, which should be so short so to allow a prompt hearing before the judge. In
BE, there is a constitutional requirement for this short period (48h). Promptly has
been interpreted by the case-law and the max is 4 days.
As a suspect, we could be brought before a judge. This judge can decide to continue
the detention and then it will be a pre-trial detention.
The requirement for the pre-trial detention:
Trial in a reasonable time. The investigation must be quick.
Release pending trial.
OR: in the sentence. It is presented as an alternative the release. But it is wrong. It is
not ok to keep somebody in pre-trial detention because the investigations are maid
quick. And not because they are slow, that they must release. The presumption of
innocence is that in all circumstances (investigation quick or slow) liberty remain if
there is no conviction. The pre-trial detention is an exception of liberty and the
presumption of innocence.

41

Bykov v. Russia (10/03/2009)

61: The presumption is in favour of release.
62: Genuine requirement of public interest, which outweighs the rule of respect for
individual liberty.
64: Persistence of reasonable suspicion that the person did it: this can be the basis for the
arrest. We cant keep a person on pre-trial detention only if there is a suspicion that the
person could (avouer). There must be others grounds and those other grounds must be
sufficient and relevant! An example: risk that the person escape justice, risk to destroy
evidence, risk of contacting witnesses (obstruct the investigations). Even with those grounds,
the authorities have to speed up the investigations.
It is a strict interpretation of this exception.
65: in the case of M. Bykov there was no indication to the evolution of the investigations,
there were always general document declining the release. No effort was maid by the
domestic courts.

Chapter 4: Article 5 4
Section 1: General principles
Right of detained persons to have the lawfulness of their detention reviewed at regular
intervals ( 168)
Lawfulness has same meaning as under 5 1 assessment should cover:

procedural and substantive conditions under domestic law

general principles of the Convention + aim of restrictions permitted under 5 1

Reviewing court:

judicial character

competence to decide on lawfulness and to decide release

regular intervals

guarantees: personal appearance or representation ( 171)

A person is arrested, brought before a judge within a period shorter than 4 days and there is a
first check of the lawfulness of the detention. The arrest and the following detention are found
to be lawful and then, the investigation of the case goes on, takes some time, is that the end of
any possibility of challenging the lawfulness of the detention for a suspect? For the protection
of article 5 to be effective (against arbitrariness), there should be a regular possibility to have
the lawfulness of detention checked for as long as the detention lasts. Its not a one-off. Thats
why we have article 5 4, which is the so-called habeas corpus. The basic idea of that
provision is that any person in detention should for as long as his detention lasts, have the
possibility to have that detention regularly checked. The purpose is the same as article 53:
checking the lawfulness of the detention and the basic guarantees are the same. The one to do
that job must necessarily be a judge because of his independence from the authorities and
because of the power to order release if detention is not lawful.
42

Under article 54, the Court in its case law is slightly more explicit on the procedural
guarantees to be provided under article 54. We already said that in terms of procedural
guarantees, under article 53, what is needed is a judge because of his independence and his
power to release. Now one of the requirements coming in addition under 54 is the
requirement that the Court should decided speedily (depending on the circumstances).

Section 2: Application to the present case

None of the remedies invoked by the Government satisfy these requirements ( 177)

Section 3: A and others v. UK

1. Facts
11 applicants. They were all suspected to be potential terrorists. The problem with those
applicants was that they were all living in the UK but could not be expelled. The obstacle to
expel was article 3 ECHR (there was a serious risk that they will be ill treated in their country
of origin). And yet, giving the danger that they represented against national security, the UK
decided that they needed to be kept in jail as long as the terrorist threat was in existence.

2. Detention without any charge.

The situation should be able to brought under a category of the grounds on which the
detention is allowed under article 5, 1 ECHR. The UK government said that that category
was category f. The government let the situation under active review. Is it good enough to
satisfy the requirement under article 5?
Starting point: the rule is the liberty and the deprivation is the exception.
164: the proceedings must be in progress! The government has said that the extradition was
under active review.
167: the deportation was not possible. It is no good enough. It does not (atteint) the
requirements.
170: provisional conclusion.
171: the balance is dismissed because it goes against the strict interpretation needed for the
exception.

3. There was another issue in that case

Article 5, 4 (habeas corpus: the lawfulness of the detention must be checked by a court).
There was a special remedy before the SIAC (Special Immigration Appeal Court). The trouble
with the proceedings before SIAC is that the access to the file and the relevant documents can
be denied in full or in part. It depends whether the UK authorities sees them as sensitive for
the public, security safety of the UK. That was the case in A and others v. UK. They didnt
have full access to the file before SIAC in the basis on which SIAC took the decision to keep
them in detention. The possibility of an effective challenge is needed and important! In the
Courts opinion the possibility to effective challenge detains the access to the file; it goes

43

together. The key notions describing the possibility and the extend to order an access to the
file is the right to adversarial proceedings, the equality of arms. These notions come from
article 6 ECHR and have been brought from the Court. 203: there should be adversarial
proceedings and equality of arms.
Exceptions possible (in the name of protection against terrorism and against national
security)? 205: YES but on condition. It must be strictly necessary in the light of a strong
public interest. 3 examples: national security, police methods of investigation, fundamental
rights. Despite those restrictions, the proceedings have to remain fair => FAIR TRIAL. It is a
counterbalance to the restriction.
=> Institution of the special advocate = it is combined with the open material and closed
material. The open material is the part of the file what is freely accessible. The closed material
is what is not accessible because of the protection of public security. And to compensate the
close material, the special advocate was created. It is another advocate with no contact to the
applicants and their lawyers. This advocate cannot properly work without instructions of the
applicants. And for those applicants to give instructions, they need to have proper access to
the file. The Court is here saying: if an applicant wants to challenge effective the detention, he
should know the information on basis of what the decision of detention was maid. If it is in
the open material, there is no problem. If this relevant information is part of the close
material, no instruction can be given to the special advocate. The test for the procedure under
article 5, 4 is to effectively challenge his detention. And for that he must know the
information on basis on what the decision of detention was taken. ( lire !!! Mmoire ! ) 218,
220.

Chapter 5: Articles 46 And 41

Section 1: Article 46
States have choice of the means to be used in order to execute judgments against them (
254) but there are exceptions ( 255)
Indication by the Court of an individual measure for the execution of the judgment ( 256257):

ascertain whether applicant wishes to remain in the home

if not, re-examine his situation without delay

Sometimes, the Court indicates measures to comply with the judgment. Case of del Rio Prada
(suspected terrorist in Spain who has spend 9 years of wrongful detention, the Court asked to
release directly the person). Here it is the same: the Court indicates, exceptionally, measures
to be taken. Here the person has a mental disorder and the Court will not oblige to release the
person against his will.

Section 2: Article 41
264: 15,000 euros for non-pecuniary damage. 15000 were rewarded. Is it enough for a
period of 7 years? It is not a lot in comparison with Seloumi. The Court has regard to the
economic situation of the Country in question (BG). This is part of the explanation.

44

Part IV: Article 10: Freedom

of expression
Chapter 1: Methodology of article 10
Article 10 ECHR is the basis of a democratic society. It is the pre-condition for all the other
rights of the ECHR.
Starting point: freedom, free exercise.
Limitations are called interferences with the exercise of freedom of expression. For an
interference to be lawful with the ECHR, we have to look with 2 of article 10 ECHR.
Conditions for interferences:
Prescribed by law (the notion of law is the same through the Convention, it is always
the same notion). It is law of a certain quality (in reference of an absence of
arbitrariness that is achieved through accessibility and foreseeability.
Legitimate aim (listed in 2 exhaustively).
Necessity in a democratic society

Chapter 2: Kudeshkina v. Russia: Freedom of expression

Freedom of expression is not only about freedom of the press.

Section 1: Facts
This case is about a Russian judge at the Moscow court. The case concerned the fact that she
alleged that she had been dismissed from the judiciary because she had publicly accused
higher judicial officials of putting pressure on her in connection with a high-profile criminal
case. In 2003, she was appointed to sit as a judge on a criminal case concerning abuse of
powers by a police investigator.
In early December 2003, she gave several interviews to Russian newspapers and radio
stations. She stated that the president of the Moscow city Court had put pressure on her while
she had been dealing with the case against the police officer. She also suggested that this was
not the only case where the Russian courts had been used as an instrument of commercial,
political or personal manipulation.
Then, she was dismissed from office. She complained about her dismissal before the Moscow
city Court (the Court where she belonged to), which heard her case at first instance. For
obvious lack of impartiality, she asked the Supreme Court to transfer her case to a different
court. But the Supreme Court dismissed Mrs Kudeshkina request and up held the decision that
she had to be removed from her judicial position.

Section 2: Freedom of expression: relevant aspects

We also should take into account the fact that the applicant, around 2003, also decided to
stand as a candidate for elections to the State Duma. The interviews given to the media took

45

place also in the context of her campaign as a candidate to the Duma. If we went the details of
what she said in those interviews, there is 88 where there are number of excerpts of what
she said. These are excerpts of her statements on which the judiciary qualification board of
Moscow based itself to dismiss Mrs Kudeshkina. These are rather serious allegations.
Its clear that she was dismissed because of these statements and the Court on this basis is
ready to consider that these facts raise a problem of freedom of expression on the part of a
judge. Of course the fact that these statements are made by a judge makes the whole story a
little delicate. Therefore its useful to try to list the relevant aspects to be taken into account
for assessing the case and assessing whether there has been a violation of Mrs Kudeshkinas
freedom of expression.
Freedom of expression is not an absolute right, interferences can be made by the state
authorities provided that certain conditions are met: 1 a basis in domestic law in the
connection with a certain quality of the domestic law, 2 the legitimate aim, 3 the question of
the necessity in a democratic society and the two main elements in assessing the necessity in
democratic society are the existence of a pressing social need and whether there is a
relationship of proportionally between the inference and the legitimate aim sought to be
pursuit by the interference. We should try to list the relevant aspects in the assessment of the
necessity, of the social need and the proportionality:
(1) A judge has a duty of impartiality and therefore what he says may have a different
impact. The applicant was a judge and a judge is bound by a different kind of duty out
of his position.
(2) She was a candidate in general elections; she turned into a politician somehow while
remaining a judge. But she was suspended from office for the time of her campaign.
(3) The public interest: she reported on a very serious matter, on serious flaws in the
Moscow judicial system. Is this a subject matter of public interest? Obviously, its
important enough to attract protection in terms of the public interest being involved in
such matter.
(4) Procedure being followed to dismiss her: the way the procedure went to dismiss her
gave rise to concerns as to the impartiality. Why there is an issue about the
impartiality? Because they were the very same judges which she criticized who then
decided on whether she should be dismissed or not. Even the Supreme Court said that
it was alright. Its interesting to see that the procedural aspect can come in the
assessment of the proportionality and the necessity of an interference under article 10.
We could say that the lack of impartiality worthen the picture to the detriment of the
state authorities.
(5) What were the consequences of the disciplinary procedure? Final dismissal from
office. Is that in any way a problem? Or an aspect to be taken into account? There is
the severity of the penalty (final dismissal instead of a fine). The penalty was imposed
without any warning; there was an element of surprise.

Section 3: Analysis of the relevant aspects by the Court

What does the court say about that?

46

82: necessary in a democratic society. There cant be a real democracy without tolerance,
demands of pluralism and broadmindedness. Is there no limit at all on the content of what we
can express? Pluralism is essential to democracy, but there are limits:
Negationism
Hate and racism
Violence
Other examples of limits
The European case law is different than the American case law where the tolerance is larger.
Limitations, what are exceptions, have to be construed strictly and the need must be
established.
The adjective necessary = (pressing social need + reasons adduced + proportionality)
The first requirement is the pressing social need. The fact that there are interference and that it
need a social need and that the social need must be pressing (imprieux) is interesting. It is
not appropriate (low standard), we need a pressing social need.
Notion of the margin of appreciation:
It has to do with the special role and special position of the ECHR. The principle, that is key
here, is the subsidiarity. The notion of margin of appreciation is a direct consequence of this
principle. It is first ad almost for the domestic Court to apply the Convention. The role of the
ECHR is to review, to supervise the domestic Courts. In doing that, and in knowing that his
role is only to supervise, the ECHR lets to the domestic Court certain discretion. The notion
for this discretion is the margin of appreciation. They are different scopes for the margin of
appreciation.
The benchmark concerning freedom of expression in assessing the scope of margin of
appreciation relates to the matter of public interest. This is an important test for the Court. For
example, for political speech, the margin of appreciation will be very close. It is really hard to
interfere. At the other edge of the scale, we have entertainment. The margin of appreciation
will be very large here. In between, we have artistic expression.
Notion of European supervision:
The final ruling is for the ECHR in its capacity to supervise.
The next requirement is for the Court to look for the reasons adduced by the national
authorities to justify. The reasons should be relevant and sufficient.
The last requirement is the proportionality between the interference and the legitimate aims.
83: Procedural aspect: Two ideas:
1. The fairness of the proceedings (art. 6 ECHR)
2. The penalty. The chilling effect of the penalty = effet inhibant. Deterring effect on
journalist.
84: in this , the Court is suggesting that a distinction should be made between facts and
opinions in the message being expressed by an applicant. Why? Its about the burden of the
proof and whether any proof can be expected from you according to whether you express
facts or opinions. What about Kudeshkinas message? Were these facts or opinions? How
would you assess what she said? Its mixed. In the Court opinion, the discussion is barely
clear cut.
47

85: To what extent freedom of expression can protect statements by judges or by civil
servants in general? Freedom of expression is not absolute. Everybody in principle is entitled
but maybe not everybody in the same way, depending on the capacity in which you express
yourself. Here, the fact that a judge made such strong statements has some impact. The
principle is that there is no exclusion; judges and public servants enjoy freedom of express.
But to what extent? How far does that freedom of expression go when they express
themselves as judges? As far as judges and civil servants are concerned, there is freedom of
expression but it has to be balanced with the duty to loyalty and discretion. So the question as
regards as Kudeshkina would be whether while expressing herself she still met her duties of
loyalty and discretion?
86: public interest? We have a kind of mixed picture because of course what was being
attacked here by the applicant in her statements was the state of the judiciary to the extent that
she wanted to contribute to a improve of the situation (that was certainly legitimate). On the
other hand, the judiciary has to be protected against attacks which may be unfounded because
1 the judiciary needs the confidence of the public (one should be careful not to destroy that
confidence too lightly) and 2 because the members of the judiciary in most cases cannot
replied because they are themselves bound by a duty of discretion. The judiciary in terms of
his position in the society enjoys a kind of extra protection concerning freedom of expression.
Its not an absolute protection but its an extra protection given the facts that confidence in the
judiciary is essential in a society and because the members cannot reply in most cases at least.
87: She was a candidate in the general election. Its absolutely essential to democracy that
candidates for election have an inherent right to exercise their freedom of expression.
Candidates should be in a position to campaign with any messages they deem fit. That makes
the picture even more mixed here. Of course she was a judge but for the time of her
campaign, she was suspended from office not as a disciplinary measure but just for the
purposes of her campaign. Her statements were made in the purpose of her election.

Section 4: Application to the present case

91: the Court is saying that there are essentially statements of facts but not inseparable from
opinions. Since we have part of the statements, which are statements of facts, the Court wants
to see whether there is a factual basis for these statements of facts. The Court is referring to a
(reliable) factual foundation. Is that the same standards as proof of the truthfulness? Not. The
Court is not demanding in the context like this proof of the veracity of the statements of facts,
proof of the truthfulness by the applicant. It seems to be sufficient in the Court opinion that
there is a sufficient reliable factual foundation. This is lowering the burden on the applicant. If
I have to demonstrate the existence of a factual foundation, this is easier than to have to proof
the truthfulness. Its an applicant friendly. And in the context of freedom expression cases, this
is sometimes useful to know.
92: the Court comes to a conclusion that there is a reliable factual foundation.
93: duty of loyalty and discretion: its the use of the freedom of expression in a moderate
and appropriate way even when the information is accurate. Even if you are right as a judge or
a civil servant, you have to do it in a moderate way. That is the test.
94: about the fact that its a matter of public interest.
48

95: the candidate element: political speech enjoys a special protection under article 10
because of its importance. In principle, judges are not barred from participating in any kind of
political speech. The Court notes that the interviews were published in the context of the
applicants election campaign.
97: Moscow city Court impartiality.
98: severity of the penalty. There are two aspects involved in this penalty: (1) the severity as
such for the applicant and (2) the impact of such a penalty on the applicants colleagues, on
the fellow judges. How? They are afraid, it has a deterring effect. In the context of freedom of
expression, that kind of deterrent effect is called the chilling effect. As a fellow judge, you are
frozen and you wont dare to open your mouth anymore. That is the kind of effect that the
Court wants to prevent and its being addressed in 98 and 99.
100: the penalty was disproportionally severe.
101-102: violation even thought the majority in this chamber was rather a short majority (4
votes to 3).
Judges and civil servants enjoy freedom of expression but they are bound by a duty of loyalty
and discretion.

Chapter 3: Editions Plon v. France: Freedom of the press

Section 1: Facts
Shortly after Mitterrands first election, he was diagnosed with cancer and he committed
himself towards the population to keep the population informed about his state of health and
yet despite this commitment, he stayed in office for 14 years and managed to keep silent about
his illness. He kept that secret. He was being take care off by a personal physician. This
doctor had written a book on the basis of his notes about his personnel experience as a
physician of Mitterrand and he was talking about his cancer. The physician and a journalist
had planned to publish the book at some stage but then Mitterrand died and they decided to
wait with the publication of the book. But suddenly, the physician had the feeling that his
performance was being called into question in public opinion and then went ahead and
published his book called le grand secret only 9 days after the death of Mitterrand in a
attempt to clear his reputation. Following that publication, the widow and his heirs went to
court, to the urgent application judge and obtained a temporary ban on the circulation of the
book. The reasons given for that ban that was the breach of medical confidentially that the
doctor should have respected. Then, 8 months later, there was a court proceeding on the
merits (no longer as a urgent application) and the first instance court decided to maintain the
ban on the circulation of the book for indefinite period of time.

Section 2: A few basics notion

As being stated in the first sentence (everyone has the right to freedom of expression), the
right stated in a convention provision is the rule and the exception is called the interference.
Any restriction of the right stated in this provision, any limitation by state authorities is called
an interference.

49

Of course there are a multitude of interferences and one of the main purposes of that provision
is to lay down the conditions under which an interference can be lawfully acceptable
under the convention:
(1) The first requirement to be met by any kind of interference is that it should be
prescribed by law. Why is that? Why should the prescription by law be the absolute
basis for any kind of requirement? Because one of the underline principles of the
whole convention system is the rule of law. If the whole convention is about respect
for the rule of law and avoid arbitrariness, it is very natural that the first requirement to
be met for any interference should be respect of the rule of law. Respect for the rule of
law is being ensured as a first step, all interferences have to have a legal basis in
domestic law.
Since the convention is about the rule of law, its also clear that the convention cannot
accept any kind of laws; the domestic law also has to meet a number of substantial
standards.
(2) The second condition is that any interference should pursue a legitimate aim. Thats
another safeguard against arbitrariness. As a public authority, you cant restrict basic
right for any kind of purpose. The aims, which can justify an interference, are stated in
that provision and its an exhaustive list (second of article 10). These are quite broad
notions.
(3) Necessity of the interference: the Court is not speaking of necessity as such but of the
necessity in a democratic society. The necessity you are relying on as public authority,
has to be compatible with the principles of a democratic society. The Court stated in
one case and has since repeated the principle that the only form of society compatible
with the Convention is the democratic society; that is quite a statement. That means
there is a substantial link between our democratic societies, as we know here in
Europe and other western countries and the convention on human rights. It would be
very difficult if not entirely impossible to apply the rights of the convention in a
dictatorship. Therefore any kind of necessity of an interference has to be assessed
against the background of what is entailed by the notion of democratic society. Its not
only about what its considered convenient, its something that has been thought
through.
a. The first explanation of that notion of necessity is pressing social need
(imprieux). Its not only about what is convenient, what is appropriate, the
interference should be answering a pressing social need.
b. Then should be a relation of proportionality between your interference and the
legitimate aim.
c. Even if its proportionate, you also need reasons, which should be relevant and
sufficient (to understand and to keep confidence the public authorities). This
seems rather common sense in terms of what you need as safeguards to
adequately protect freedoms laid down in the convention.
The margin of appreciation? It plays a role as regards the question whether there was a
legitimate aim and as regards as the necessity of an interference. What is meant by margin of
appreciation? There is a lot to do with the subsidiarity of the convention. It is not the role of
the Strasbourg Court to do a job of a national Court, to put itself into the shoes of a national
court. Why? The role of the Court according to the Convention is to review national decisions

50

for their compliance with the Convention standards but not to do the job itself. That is the
basic philosophy. That means that if the Court says that she doesnt want to interfere in any
detailed questions decided by a domestic court, that necessary entails a kind of scope left to
the national authority, to the national court for decision to be made according to day
understanding of the situation without this necessarily having to be reviewed by the
Strasbourg Court. Its a kind of scope left for autonomous decision, which if they remain
within that scope, will not be sanctioned by the Strasbourg Court, will not give rise to a
violation. This is a kind of discretionary power left to the national authorities with the only
difference that its called margin of appreciation because the criterias governing the margin of
appreciation are a bit different from what you have traditionally within the domestic legal
system as regards the discretion power.
One of the big issues going through the case law is how big this margin of appreciation should
be? Should the national authorities be left with a huge margin of appreciation? Or should the
margin of appreciation be very strict with the consequence that the Strasbourg Court will
interfere much more often? The answer to that is that it would depend on the subject matter.
In article 10, we should distinguish between:
Matters of public interest being addressed through freedom of expression comes
very close to political speech (very well protected). The margin of appreciation left to
the national authorities would be very narrow.
There is balance maid by the Court between the confidentiality and the public interest.
The time factor is essential here. The Court will make a distinction between the time
when the interim measures were brought and when the injunction on the merits was
brought. The more time basses by, the more we balance more for the public interest
than the interest of the family.

Pure entertainment: its the different and the margin of appreciation would be much
more wider. The intention by the Court is to protect political speech as much as she
can. As soon as public interest is concerned by the expression at issue, the Court wants
that expression to be protected as well as possible.

Section 3: Judgment
One of the questions concerning president Mitterrand is his state of health a matter of public
interest? The French Court considered that the doctor acted in breach of his duty of
confidentially. But its only one aspect and there may be others. Somehow he committed
himself to inform the population but we can consider that even without this commitment, it
might be a matter of public interest. But this might be a matter of discussion.
22: the question addressed was whether there was an interference? There was an interference
because the ban on the book was an obvious interference.
26: whether the interference was prescribed by law? In this , the notion of law within the
meaning of the convention is being explained. We saw that there is law and law and what is
meant by that is explained in this . What is in the court opinion an essential feature of the
notion of law within the meaning of the convention? Sufficient precision for predictability (or
foreseeability). Its a basic requirement of the rule of law. You cannot have proper law if the
consequences of the law cannot be predicted with a reasonable degree of precision. And each
time, the Court applies this requirement to the notion of law either its the context of article 5,

51

7, 10 or whatever. The Court has stated several times that my understanding on the notion of
law is the same throughout the convention. Its a notion which is compatible with the rule of
law and that entails sufficient precision for it to be predictable in its application and its effect.
Then there is a discussion by the applicant on whether the application of the French law on
confidentiality was predicable.
31: conclusion of this analysis. The discussion on the prescription by law is about
foreseeability of the law. The applicant cannot maintain that he was enabled to foresee to a
reasonable degree the consequences of the publication of le grand secret. The Court
concluded that it was prescribed by law.
34: the legitimate aim. Its not disputed that the Court accepts that the domestic authorities
based their decision on a combination of two legitimate aims listed in 2 of article 10:
preventing the disclosure of informations received in confidence (reference to the breach of
the medical confidentiality) and the protection of the rights of others (those of the president
and his widow and children). In principle, the list of legitimate aims is an exhaustive list but
the Court is rather liberal in respect of the interpretation of these aims given by the domestic
authorities. The Court on the other hand is much more strict on the necessity.
35: necessity
42: Why freedom of expression constitutes one of the essential foundations of a democratic
society? You have a number of countries in Europe (like Germany) where they say that the
freedom of expression is the mother of all other freedoms. Why is that? Why the public
should be informed? It is about control. Its through information about whats going on that
the public can control whats going on in society. The idea is that public should know about
whats going on in order to be able exercise control. Of course one individual should have the
right to express himself but one individual as such will not make a difference and be able to
preserve democracy. Its public opinion at large. When something serious is going on, people
can either demonstrate, express their opinion, go to the press or draw consequences in term of
their vote. That is the reason why in some countries, legal theories say that the freedom of
expression is the pre condition to all of other freedom because its only if you know that either
freedom are preserved or not that you create the conditions for public opinion to be able to
defend public freedoms.
What its protected is not only all that is being favorly received considering inoffensive but
also opinions, which shocked, offend or disturb.
The last idea is that since interference is an exception to the rule, the consequence is strict
interpretation. That is quite obvious.
42 next sub : Social need in connection with a margin of appreciation. But its not
because there is no margin of appreciation that there is no European supervision. The final
word is to be given in Strasbourg.
The last sub of 42 is more specific to this case because it was a kind of prior interference of
freedom of press, also called censorship, which is a serious matter. Censorship is not by
definition contrary to article 10. However, it entails dangers for democratic society because
you prevent public opinion from being informed about matters, which can be serious. Its a

52

massive interference in a basic right and therefore it should be a very strict scrutiny on the
part of the Court in respect of that.
43: the role of the press. Its not only the press that can consider whether it wants to inform
the public or not, its also about the right of the public to be informed. In a democratic society,
if there would be no press worth the name, then this statement would have to be taken up by
state authorities, which would have a responsibility to ensure that there is a press in the
country sufficiently active as to ensure a proper information of the public about whats going
on. And not only in print media but also in terms of radio and television. All of that is summed
up in the last sentence of that sub when reference is made to the role of public watchdog
(describe very well the role assigned to the press by the court). To the extent that the court
will exercise its role as a public watchdog and report on matters of public interest, the press
will be to the very large protected by article 10 and by the court case law. To the extend that
on the contrary, the press is dealing with other interests in terms of entrainment of public then
the protection by the court will be reduced and this will make sure through a large margin of
appreciation.
44 second sub : Question whether President Mitterrand health was a matter of public
interest in the eyes of the Court. The emphasises being on the concern of the public on
whether the state president was fit for office, the court considering to be a legitimate concern
and therefore a matter of public interest.
You see the consequence of that analysis in the last sub of 44: the French authorities only
had a limited margin of appreciation because the Court considered that to be a matter of
public interest.
The rest of the analysis is rather simple. In the following parts of the judgment, the Court
distinguishes between the interim injunction (imposed by the urgent application judge) and
the permanent ban (imposed by court of first instance on the merits). And in both cases, the
Court asks two questions: (1) what reasons were giving by the domestic authorities? (2) And
was that measure proportionate?
(1) In terms of the reasons given here, the Court accepts the first reason given by the
domestic court, which is the breach of medical confidentiality (46).
Then, another consideration taken up by the domestic court is the fact that the book
came too soon after president Mitterrands death. It was a bit too soon because he was
depicted in the book as a liar and this is maybe too much for the widow and the heirs.
Not sufficient respect for their grief. Linked to there is the damage to the reputation of
the president.
(2) In term of proportionality: it was not a permanent ban but only a temporary ban. So, it
remains proportionate. It is not too much because it was not indefinite in time.
Now in term of the permanent ban, the reasons here scrutinized by the Court. The
Court is rather strict but it announces that it would be strict because it is about freedom
of the press and matters of the public interest. In terms of the reasons given, the only
significant reason given by the public authorities was the medical confidentiality,
which was breached. This breach could justify permanent ban of that book. The Court
says ok there was a breach of confidentiality but the question is whether it was not too
much nonetheless? Here again we have a question about proportionality (53). The
Court is saying that with the passage of time, there is a kind of shift with the interests
at stake; it less about protecting any kind of confidentiality and increasely about
53

permitting a better understanding of history. This doesnt mean that the Court
considers that the requirement of historical debate may release physicians from the
duty of medical confidentiality, which in French law is general and absolute. However,
once the duty of the confidentiality has been breached, the damages have been done,
the passage of time must be taken into account in assessing whether such a serious
measure as banning a book was compatible with freedom of expression. This is a
judgment also dedicated by the facts. Confidentially had been breached, the
information was already in the public domain, the content was on the internet, there
was no point in keeping protecting this confidentiality. Again the interest of the public
in a matter of public interest became prevailing.
Conclusion: 55: due to a lack of proportionality of the ban (the ban being a too harsh
measures, and that the public had acknowledge of the book), there was no pressing social
need to continue the ban, the confidentiality is no longer in practice. There has therefor been a
violation of article 10 ECHR.
In the balance between the confidentiality and the public interest, with the time, the public
interest wins (there is no longer need to grief either).

Chapter 4: Yildirim v. Turkey: Freedom of expression on internet

Section 1: Facts
Background : blocking of the applicants Internet site in the context of criminal proceedings
against another person
Its the story of an applicant who ran a blog on which he published materials including
academic work. He did it using Google Sites. An order was issued by the criminal court of
first instance to block another blog. This was considered to be a preventive measure. The
competent administration to oversee this operation of blocking, decided that the blocking of
all access to Google Site was needed so the blog of the applicant was blocked. The application
of the applicant was dismissed. The applicant complained on the impossibility to access his
internet site.

Section 2: Court reasoning

1. Whether there was an interference
51: description of the problem.
52: issue of the case: Impugned measure amounted to prior restraint: it was to remain in
place until such time as a decision was given on the merits or the illegal content of the
impugned site was removed
47: Article 10 does not prohibit prior restraints on publication as such. However, they call
for the most careful scrutiny by the Court
51-52: Applicants right to receive and impart information and ideas affected (as a collateral
effect of a preventive measure)

54

54: Given the importance of the Internet today, the limited effects of the restriction at issue
(compared with a wholesale ban) do not diminish its significance
51: Restriction imposed by public authorities (the Denizli Criminal Court at the request of
the competent administrative body)
55: look if there is an acceptable interference => Law prescribes it? Legitimate aims?
Necessity in a democratic society? The analysis will stop at the level to examine if law
prescribes it. In sum, there has been an interference.

2. Whether the interference was prescribed by law

57: requirements:
Some basis in domestic law
Quality of law:
o Accessible
o Foreseeable
o Compatible
59: Rule of law + protection against arbitrary interferences by public authorities the law
must indicate with sufficient clarity the scope of any discretion and the manner of its exercise
by the executive.
How some kind of discretion is left to the administration. It is about the relationship between
discretion and arbitrariness. If you have no or less discretion, it is arbitrary. We are here
specifying the quality of law. It has to do with accessibility and with foreseeability. T-it should
also be compatible with the rule of law. In 59, we learn that if a law leaves some amount of
discretion to the authorities, compatibility with the rule of law requires that there should be
clarity on the scope of the discretion and the manner to exercise the discretion.
The question is to see if there was a clear and precise law about this (56).
61: The applicants website did not fall within the scope of the statutory provisions (Law no.
5651) which served as a legal basis for the impugned restriction.
62: this kind of general blocking of access has no basis in that law. This is the first problem.
Another requirement of that law (the notification) had not been complied with. The court is
strict in analysing whether the law in terms of its effects was precise enough.
63: Extensive powers conferred on the competent administrative body. Was this extensive
power ok in issue with the foreseeability with the law?
64: The preventive measures are not necessarily incompatible. They must be some
safeguards.
1. Legal framework: the limits should be laid down in that legal framework
2. Control over the scope of this discretion.
3. Judicial review (contrle juridictionnel): it should make a balance between the
different interests (weighing-up). It is a control of proportionality. It is going into the
merits and examines the proportionality.Fchil The typical test is to examine if there is

55

a less far-reaching measure, a less restrictive measure. It is more than to see if the
measure is reasonable.
=> The Court is requiring safeguards in order to comply with the rule of law.
66: it is described what the judges do in practice. The problem is that the Court in charges
did not do any balancing between the competitive measures and did not examine the
necessary of the measure. It is about proportionality but this should have been laid down in
the law as part of the safeguards that we need to reconsider discretion with arbitrariness.
67 and 68: Conclusion => Problem about the foreseeability. Arbitrary effects because of the
lack of the sufficient safeguards. The arbitrary effects are these unfettered power in the hand
of the administration.
There is an interesting difference whether I consider law does not prescribe a measure or
whether I consider a measure is not proportional. The first violation is stronger. It is more
general and abstract. The proportionality, in the other hand, is on an examination in concreto.
In Rotaru v. Romania, the Court also stopped his analysed when she saw that no law
prescribed the measure taken.

56

Part V: Article 11: Freedom of

association : Refah Partisi v.
Turkey
Its a landmark judgment and belonging to the judgments making up the political doctrine of
the Court.
Political parties are a sensitive form of association to which the Court has extended the
protection under article 11 ECHR. There is a lot case law on the possibility to dissolve a
political party. The country which produced the more case law in that matter is Turkey. There
is also the problem in Germany with the NPD, also in Belgium, against the Vlaams Belang
who anticipated and dissolved itself and created the Vlaams Block.

Chapter 1: Facts
Its about the dissolution of a political party in Turkey (islamist political party). Refah Partisi
is translated as the welfare party. The applicants were the party, the president of the party and
a number of leading members of that party, which were in the same time members of
parliament. At some point in 1997, the principle state counsel at the Court of cassation
brought proceedings in the Turkish constitutional Court and the constitutional Court agreed to
the effect that the main reason for the dissolution of that party was the fact that it has become
the centre of activities against the principle of secularism. In support of his application, the
Counsel of state had relied on various acts and declarations by leaders and members of that
party which indicated that some of the partys objectives were incompatible with the
requirements of a democratic society.
Another important element in the assessment of the situation is the fact that this party was
already in power at the time of the dissolution and was in a coalition government since one
year. So it was not a kind of second or third zone middle political party, it was a party with
members in the parliament and who was in a coalition in the government.
Nonetheless, in a judgement dated 16 January 1998, the constitutional Court dissolved Refah
on the ground that it had become a centre of activities against the principle of secularism. Five
members of that party including the president of the party were bound from any political
activities for 5 years.
Currently, there is a debate going on in Germany about whether the authorities should act
before the German constitutional Court with a view of having a right wing political party
called NPD (national democratic party). This is a non-going debate. So, its not only about
parties in far away countries; its also the matter of reflection at our doorsteps. This is a
serious matter and number of politicians took part in that debate in Germany, saying that its
not that easy to have such a party dissolved; they have to take into account the Strasbourg
case law. You hit at the heart of the democratic process mostly when that party is already in
power.

57

In Belgium, the party called Vlaams Belang was a couple years ago called Vlaams Blok and
they changed their name in anticipation of a action for their dissolution, which was being
prepared. Even in Belgium, we had a kind of move in the political landscape as a result of
possible attempts made by the authorities in respect of one specific political party, which was
considered as possibly propagating ideas, which were not compatible with the Belgian
constitutional.

Chapter 2: Values at first sight

What are the values that involved in this case of process which are involved in this set of
facts?
Public order
Statute of the political party and the position of political party in society: what is the
extent of the protection they should enjoy?
Freedom of expression: the party at stake, the leaders and the members made a number
of declarations. Are they not entitled to say what they have to say and what they think
its right? Even if it is disturbing.
What was the content of their expression? What kind of message? Religious message.
That also raises the question about the place of religion and the freedom of religion
Democratic element involved in the sense that this was a party already in power. It had
been brought to power by an election. Its also about the respect of the will of the
voters.

Chapter 3: Analysis of general principles by the Court

86: the only compatible political system with the Convention is democracy in the western
conception of that notion (parliamentary and pluralistic democracy). Its the only political
system accepted by the Convention. That means to the extent that a political program is
aiming at destruction or imputation of democracy, it would go against the convention and
would not be protected by the Convention. In other words, the consequence of that is that any
political program advocating suppression in any way of democracy and any political message
advocated suppression or even amputation of democracy would not be protected by the
Convention. This is a first indication of the fact that the freedom of the expression as attended
by the Convention is not purely formal. Not any kind of message, not any kind of content, not
any kind of value is protected in its expression by the Convention, only what is compatible
with the Convention. These are very important substantial limits to freedom of expression as
attended by the Convention. This is the first starting point essential to understand the next
steps in the demonstration by the Court.
87: the next step is to stress the importance of the role played by political parties in a
democratic system. Just as there would be no protection for whatever is attended to destroy
democracy, there would be a higher protection by the Convention for whatever is necessary
for the proper functioning of democracy and one of the key elements for the proper
functioning of democracy is in the Courts opinion political parties. First, they kind of convey
the political opinion of the citizens at the level of the decision makers. There is a role of
transmission of opinion from the bottom to the top. It one of their essential functions.
88: the second aspect of the role of political party in democratic system. Political parties are
a form of association protected by the Convention under article 11 but with a clear purpose

58

that is to express a number of political messages. So its an association created somehow to

exercise in a collective form freedom of expression.
89: Here we have an important notion, which is the notion of pluralism. There can be no
democracy without pluralism. So pluralism has to do with the fact that in a western
democracy, there is not only one political party but there can be a number of unlimited parties
and the number of different opinions can be unlimited too. Democracy lives from the fact that
you have different opinions competing for the better solution and therefore, the completion
for the better solution is an essential element of democracy. If you have only one political
party and one opinion allowed in society, you cant call it democracy. That its why the Court
says this pluralism entails that it should come also with opinions that offend, shock or disturb.
The fact that a opinion is shocking, disturbing or offending is no reason to silence it or attack
it. There is another essential element of democracy and pluralism. At this stage of the analysis,
the members of Refah could say that they are a political party, they express their opinion, they
are part of pluralism, they are in the functioning of democracy and they should be protected
rather than dissolved. But this is not the end of the story.
What about the religious content? Its the content of the message by the party, which needs to
be analysed and more specifically the religious nature of that content. In order to do that, the
Court has to give a kind of little introduction about the role of religion in society. Freedom of
religion is protected under article 9 of the convention (that is the freedom of thought,
conscience and religion).
4 questions:
(1) Does it cover also the right not to have a religion, not to believe? Yes. This is a right
where both aspects (positive and negative) are protected under the Convention
90: you have the right under article 9 to believe something but you also have the
right not to have to believe something. It is a protection against religion integrism. It
has both sides.
(2) Is the right to have a religion or not to have a religion unlimited? No, its not an
absolute right. The state has a right to interfere and well see under which conditions.
(3) Is the freedom of religion as protected by the Convention only the individual and
personal aspect or does it cover also demonstration in public of any religion belief? Is
it something only protected to the extent that you exercise or believe at home or in
private circles or do you have the right to express your belief by attending massive
celebration? It not only individual.
(4) What do we do when we have a plurality of religious communities in a state? Who
should keep all that in a peaceful way? The state authorities have a responsibility in
respect of ensuring a peaceful coexistence of the different religious communities. But
the Court is insisting on the fact that the State has to remain neutral; the state
authorities are not allowed to express an opinion as to the value of the different
religions or religious communities coexisting with each other (94).
When do state authorities can act against a political party from the point of view of the
Convention? The Court in this part of the judgement says that there are two actions against
political parties allowed in two situations and under two different conditions. Political parties
enjoy increased protection so the possibilities of acting against would be very limited (98):
(1) Respect for democracy: from the moment a political party is advocating a way of
destroying democracy, then it become problematic. This is the red line. To use the
words of the Court, any change proposed by the political party must itself be
59

compatible
with
fundamental
democratic
principles.
Voters cant send political parties in power to destroy democracy. This is why for
instance, for historical reasons, you have in the German constitution an eternal clause,
which have the purpose of preventing the abolishment of a number of key democratic
principles.
(2) As regards to the means to be used, the Court is saying only legal means. If a political
party advocates the use of violence for the purpose of establishing a new regime, that
is not protected by the Convention
99: key sentence: in view of the very clear link between the Convention and democracy, no
one must be authorised to rely on the Conventions provision in order to weaken or destroy
the ideals and values of a democratic society.

Chapter 4: Analysis by the Court of the present case

3 substantial material problems:
(1) Plurality of legal system that this party waited to introduce in Turkish society
(2) The sharia: they also wanted to introduce sharia into Turkish society
(3) The problem of violence propagated by the welfare party and more specifically the
jihad.
119: introducing a plurality of legal systems where rights and freedoms would be accorded
to persons according to their religious belief or membership of a religious community is
incompatible with the Convention system. Why is it incompatible? Categorizing citizens of
nations according to their religion beliefs and drawings consequences in term of rights and
freedoms from this categorization is incompatible with the convention. There are at least two
provisions which come into mind in support of the view that it is incompatible with the
Convention:
(1) One major obstacle is discrimination, which is prohibited by article 14. There is a major
risk of discrimination in a system like this.
(2) And there is article 1 which guarantees the rights to everyone regardless of the religious
beliefs and the religious opinion of everyone. The approach by the Convention is a very
egalitarian approach. Its everyone within the jurisdiction of the state and not only the
members of religious communities. This is a major obstacle for the compatibly of such a
political program with the Convention.
123: introducing the sharia. We have a combination of formal and material aspect. The two
reasons why action against a political party would be justified under the Convention is the
respect for democracy and legal means.
Here concerning Sharia, we have also a formal problem and a material problem. What is the
formal problem? Sharia is unstable and invariable. To what extent this is a problem for
democracy? What is the very essence of democracy? The fact that a democracy is in constant
evolution. Democracy is the system where the rules can be made to change by public votes.
That is the essence of democracy, it is not invariable when sharia is different, it is considered
by the Court to be invariable.
The other aspect is more a substantial aspect: diverges with the Convention values. Criminal
procedures under the sharia are certainly not in line with article 6 for instance. They dont
know much about due process. There is also the legal state of women, which again probably
raises a problem of discrimination on the basis of gender. Then, there is generally speaking
the intervention in the sphere of private and public life in accordance with religious precepts,

60

not so much in accordance with democratic precepts but rather in accordance with religious
and invariable precepts.
129 and followings: violence. The problem that the Court sees is that this parties position in
respect of the use of violence as a mean to pursue political aims was ambiguous and the
criticism made by the Court is that the political leadership didnt distance itself explicitly for
the use of violence and from jihad. The Court only accepts legal means and no violence. The
leadership didnt advocate explicitly jihad but between the lines, there were hints of it and the
political leadership of that party didnt distance itself clearly enough from the use of violence.
That was the problem identified by the Court.
As a result of all that, the Court ends up concluding (135-136) that there has been no
violation of article 11 of the Convention. In other words, it considers that the interference, the
dissolution of that party was indeed necessary in a democratic society having regards of
course to the margin of appreciation for the domestic authorities. The first assessment of
whether an interference is necessary is for the domestic Court and the Court exercises only
supervision of the decision by the domestic Court. Even though the margin of appreciation
was very narrow because we were in the political sphere, given the circumstances, the
message and the program of the party, the solution was justified.
The convention is applicant friendly, can be considered as a friendly instrument but it also
contains red lines which cant be crossed without removing the protection from the
Convention. It doesnt allow anything that destroys its own values and democracy.

Chapter 5: Summarizing the message

This judgment is a part of the judgments establishing what the teacher would called ordre
public of the Convention. Ordre public is somehow the red line in terms of the values that a
legal system cannot accept in recognizing the effects of foreign legal act. There are
similarities between that notion in private international law and the convention system. This is
about the material or substantial limits imposed by the Convention.
Can we think of another examples? Of other contexts where the Convention imposes some
materials limits which cannot be crossed without escaping the protection from the
Convention?
(1) In the sphere of freedom of expression, any kind of speech is capable of being protected
by the convention?
In the sphere of free speech, racist speech is not protected by the Convention (Jersild
case) because racism is an approach running counter to the values of the Convention.
Violence
Revisionism: In the Garaudy Case, a former French philosopher who towards the end
of his life started behaving strangely. He started denying the holocaust and published a
book on this. When you start denying obvious historical facts of the gravity of the
holocaust, you lose the Convention protection. And interestingly, there is article 17
about the abuse of right which is a provision designed to protect the Convention. That
is the Convention protecting itself. Nothing set forth by the Convention can be used
against the Convention itself. Its the same philosophy as we have in the case of the
Turkish party. The Court relies on the Convention not accepting a program aimed at
destroying democracy or democracy principles of which the Convention is an inherent

61

part. Its so very well to have freedoms and rights but they cant be no question of
using all that against the Convention itself or against the democracy. In Garaudy, the
Court is using article 17 to say that this case is unacceptable.
(2) In the area of discrimination: in discrimination cases, we have this requirement that its
for state authorities to justify why they treat people differently. If there is an appearance of
discrimination, of different treatments, its for the state authorities to justify that. There are
two grounds discrimination where it becomes almost impossible for state authorities to
justify: gender and race (or ethnic origin). These are considered by the Court in the case law
as suspect grounds.
About Refah Partisi: its a non-democratic judgment for the sake of democracy.

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Part VI: Article 8

Chapter 1: Principle: The right to respect for private life
Known as the catch-everything provision because it is the basis, or the provision used to cover
some new areas, which have not been envisaged by the fathers of the Convention at the time.
From the wording of that provision, we see immediately that we are dealing with the right to
respect for private and family life, home and correspondence. These notions are interpreted by
the Court in a very broad sense. The structure of that provision is very similar or even
identical to the structure that we saw with article 10. Articles 8,9,10 and 11 are structured in
pretty the same way. The first of the article states the right and the second states the
conditions under which an interference with those rights can lawfully take place. Therefore,
the methodology to be followed, when applying article 8, is pretty similar to the one we saw
for article 10.
For an interference to be lawful:
(1) It must be provided by law;
(2) There has to be a legitimate aim (the list is exhaustive) and
(3) Thirdly the interference has to be necessary in a democratic society. This notion involved
the existence of a pressing social need and of a reasonable relationship of proportionality
between the interference and the aim.
The most interesting thing about article 8 is the flexibility of the scope of that provision, the
flexibility of the key notions appearing in this provision. This provision is protecting the right
to private life and family life.
The notion of private life is an open-ended provision. We have a number of areas, which can
be identified as belonging to the notion of private life:
Identity of a person: covering things like the name of a person, personal data, sexual
orientation, etc.
Integrity: in the physical but also in the moral sense. Need to protect vulnerable
persons like children, people with mental diseases.
Personal development: that includes also relations with other persons. Private life is
not to be understood as an area concerning only the individual and nobody else. Due
to the fact the personal development has to do with the possibility that you establish
relationships with other persons, and even relationships of a professional nature, it
entails the consequences that private life also covers professional relationships and
similar kind of relationships.
Its also occurs about the notion of assisted suicide.

Chapter 2: Haas v. Switzerland

There is possibility in Switzerland to have assistance for suicide. You need a medical
prescription to have the lethal substance. This prescription should come after a total
psychological examination from a doctor.

63

M. Haas refuses that condition. The right to respect to private life should oblige the State to
help people to have assisted suicide without prescription. This condition is too much.
32: resume of conditions for assisted suicide.
50: main issues arising under the notion of private life: integrity, identity and development.
The last sentence is important: there is a reference to the case of Pretty, which concerns main
article 2 of the Convention (right to life and not right to die). She had a neurologic serious
incurable disease. She will die by suffocation and paralyzed. She wants to escape to this
horrible death. She argued that article 2 gave her the right to die. But at the time, assisted
suicide is prohibited in UK. If she has the right to life, she has the right to die and his husband
has the right to assist her to die. The Court didnt follow this reasoning. (// article 11: right to
association and so, right to not have an association).
39 of Pretty: article 2 cannot be interpreted in a way of allowing right to die.
She also invoked that if she hasnt the right to die, it will be a treatment under article
3. But the Court didnt follow this anyway.
67 of Pretty: She also said under article 8 that this choice to die is her right to private
life. The Court isnt prepared to exclude the denial of that choice constituted an
interference with the article 8. But the Court dismissed the demand. However, there is
a tiny door opened because the Court didnt want to rule the possibility of implication
of article 8.
51: beautiful example of the silent work of the Court. There is a right under article 8: a
person can choose the time and the way to end her life. But there is a condition provided he
or she is capable of freely reaching a decision on this question.
52: The Court goes on. She distinguishes this case of the Pretty case because here, its not a
case about the right to die or being assisted. The question here is: there is an obligation of the
State to help people to have assisted suicide?
53: The Court accepts to examine the demand. Should the Court be strict or more liberal
about the margin of appreciation? You can be liberal because there is no consensus but you
can also say: this is so essential to end of life, the Court can take the line and impose his point
of view.
54: this paragraph is enough detailed and requires no more further explanation.
55: there is no consensus on giving unlimited right in terms of getting support for suicide.
We are far from that. There is only small minority on the continent.
56: there is competing interests in this case: protection of State vs. right to life or die. The
Court is sympathetic to the applicant wish.
57: very clear.
58: the Court made a clear link with the article 2.
60: last sentence: the Court recognizes the right to choose the time and manner of his death.
This right is not theoretical or illusory. The Court very often contrasts theoretical or illusory

64

with practical and effective right. This is a clear reference to that theory of effectiveness. It
was effective enough and practical enough to dont need another solution. This kind of
reasoning allows the Court to recognize that there is a positive obligation from the State to
help with suicide.
61: even assuming that the States have a positive obligation to adopt measures the act of
suicide with dignity: its opening the door! The Court dont rule out the possibility but dont
go there either.
Questions arising in article 2 and 8:
Article 2: is there an obligation to decriminalize assisting suicide on basis of Pretty?
No. There is no right to die; there is no obligation to decriminalize as under article 2.
Article 2: Decriminalize assisting suicide is in breach of article 2? No, there is a
margin of appreciation. Its not because the Court said there is no right to die under
article 2 that given this right to die is in breach of article 2.
Article 8: facilitating suicide is in breach of article 8? Not because the discussion is
more whether the State is obliged to do a step further.
Article 8: Is there an obligation to facilitate suicide? It may be : even assuming.

Chapter 3: Colon v. the Netherlands

Search = fouille
62: his complaint: the way the complaint is formulated is interesting. He formulates a
general complaint about the regime itself. Its a special feature of that application and this is
the reason why previously the Court dealt with the victim states of the applicant.
60: Actio popularis isnt allowed. You can only complaint about something, which arrives to
you. If you belong to the people targeted by a law, you can challenge the application of the
law even if shes not yet applied to you. Its the only possibility. The typical example is a
legislation which prohibit intercourses between two persons of same sexes. Its not yet applied
but its only matter of time.
Existence of the interference: 61 and 65: Its an answer to the argument of the
government who said that he wasnt a victim.
Interference is in accordance with the law: same thing that for other case. We will not
extent on that except for a sentence in 72: For domestic law, : we can related that with
the case of Yildirum v. Turkey. In respect of discretion of public authorities, the requirement
of the rule of law and by that, the foreseeability of the law, the discretion should be specified
with sufficiently clarity about the scope and the manner of its exercise. What is the scope of
that discretion and how it must be done? Its the only way to keep in control the discretion.
What are rules without a challenge, a review. We need to control.
75-76-77: The Court speaks about the prior judicial control. Its the prosecutor who choose
the timing and the burgomaster only choose the place. The Court considers that even if there
is no prior judicial control, there are enough other mechanisms which provide sufficiently
protection against arbitrary and foreseeability of the measure.
80: Legitimate aim: public safety and the prevention of disorder or crime.
65

Necessary in a democratic society:

Pressing social need
Reasons relevant and sufficient
Proportionality in relationship between the interference and the legitimate aim been
pursued
91-93: proportionality of the mechanisms.
85: it is about protection of the individual against interference in private life and also about
having regard to another interest that is the protection of physical integrity. It looks like we
have another and a new category of obligation to protect.
The duty to protect under article 2, 3, 5, and now under article 8.
86: the first classic standard reason subsidiarity: absence of consensus and therefor the large
margin of appreciation. The second is the distance between local remedies and international
remedies.
94-95: about the necessity: is it a valid consideration that the Court relies on the facts?
above all. Its because the measures were effective to fight against crime that the Court
accepts them. The professor draw our attention that we have to be careful about justify the
necessity in light of effectiveness. Its an imprudent formulation, given the impression that the
effectiveness of the measure is a big part of his justification.

Chapter 4: Protection of environment: Lopez vs. Ostra

How deal with serious environmental problem? The provision on which the Court based many
cases is the article 8. It catches everything.
This case was a real break through. This is the first clear case on environmental protection
where the Court found a violation. On the basis of this case, the Court developed a whole line
of case law. It is very progressive in the sense that under certain conditions, an individual
right to protection against severe environment severe pollution is recognized. The interesting
thing about the Courts approach is that what we have here is really an individual justiciable
right. In many other texts or even in the EU charter, you find a number of provisions about
about clean environment but never you find an individual justiciable right. That is the value of
that case law.

Section 1: Facts
It is about a family living in the neighbourhood of a waste treatment plant in Spain. It seems
that this plant didnt operate properly (number of defects) which cause serious environmental
pollution in a form of gases fumes, smells, contamination, etc. The municipality was aware of
the problem. At some point, they evacuated the applicants free of charge. After 3 months, the
applicants came back and they stayed there for another 3 years suffering from this polluted
environment. They went before the Court but they were unsuccessful. Even the Constitutional
Court dismissed their complains considering that the problem was not serious enough. But
then somehow, a second attempt was made which was a little more successful and which
resulted in the family being rehoused in a flat but only after 3 years of suffering and after
having overcome fierce resistance by some public authorities involved in that problem.

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Section 2: Applicability
The big question which arose in this case was the question of the applicability of article 8
because its quite a step from notions like private life, family life to protection of the
environment and yet the Court took that step on the basis of a simple reasoning that we can
find in 51.
50: reasoning by the local authorities. This is a matter of quality of life; this is not serious
enough to affect fundamental rights so they cant do anything.
51: court reasoning.
Are we talking about any kind of environmental pollution? No, it has to be severe. Does the
fact that we talk about severity of pollution involve that health already has to be already in
some way? No actual health damage is required. If there is health damage, its an additional
argument in favour of severity of the pollution at stake. But we dont need as a pre-condition
for the applicability of article 8 in this kind of context to wait until its too late.
What is the Court reasoning? What is the test for the applicability of article 8 in this kind of
case? Its the fact that from this pollution, you have to be prevented from enjoying your home
in a proper way and that affects your family life or your private life. Because of the pollution,
you are prevented from properly enjoying your home and that can affect your family and
private life. In this case, there were experts reports establishing the fact that the children of
the applicants suffered from health diseases.
What is it required here? The teacher doesnt see why the Court is talking about interference
by a public authority. It seems far more obvious to rely here on the existence of a positive
duty on the state and itll be confirmed in the following parts of the judgment. So, as a starting
point, in a case like this of severe pollution, there is a positive obligation on the part of the
state (a duty to protect against that form of pollution. What the Court is suggesting here is the
fact that a fair balance (no absolute rights here) should be struck between the interest of the
individual and the interest of the community as a whole. What is here the interest of a
community as a whole? The economic well-being and more specifically having a waste
treating plant (58).
55: the next step is to assess whether the domestic authorities fulfilled their positive
obligations, whether they took the appropriate measures to protect the applicant.
56-57: Analysis of the story of the proceedings before the national authorities. The basic
message is the fact that some authorities resisted. In two instances, judicial decisions in favour
of the applicants were appealed against by local authorities, contributing the prolonging of the
sufferings of the applicants. The Court is rather critical about these steps taken by the local
authorities to resist measures which were called for by the situation. What is wrong about
appealing if that legal avenue exists? There is nothing wrong about that but it prolonged the
sufferings of the applicant and therefore is seen in a critical way by the Court.
58: conclusion. It has been a violation of article 8.
In term of the fair balance, we saw that the Court gave some importance to the fact that the
local authorities prolonged the suffering of the applicants and resisted a number of measures,
67

appealed against a number of measures. What if the authorities would have acted promptly,
more diligently? Would have make any differences? Is the source of the violation only the
pollution or also in addition of the pollution the reaction by the local authorities? It is not said
by the judgment. Maybe we could say that the applicants lost their victim status if the
rehousing entirely redresses the problem caused by that sort of pollution. We could also
imagine that as long as the health damage is not too serious and as the authorities reactions is
quick enough, there would be room for an argument to the effect that the state authorities
remained within their margin appreciation. But here there was no question about that before it
was obvious that they resisted.
One of the most recent cases concerning environmental protection is the case Di Sarno v.
Italy.

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Chapter 5: Shalk and Kopf v. Austria

Section 1: Facts
Its about same sex couple (two men), who at the time, were prevented from contracting
marriage, from having any legal recognition of their relationship. They complained about the
total absence of any possibility under Austrian law at the time to have some sort of legal
recognition of their stable de facto relationship. The most obvious provisions to invoke in a
case like this are article 12 and article 8 of the Convention, it behind understood that article 8
protects private life but also family life. The interesting issue in this connection would be
what to do about family life. Whether there is any chance of having the Court recognizing a
de facto same sex stable relationship as family life. This case was indeed an important step
taken by the Court towards acknowledging that indeed a same sex couple can have family
have within the meaning of article 8.

Section 2: Article 12
Its precisely about marriage, so it was rather obvious for the applicant to first complain about
a violation of article 12. So having regard to this wording, was is the obvious obstacle to be
overcome? There is a specification about the gender (men and women) and the argument by
the applicants was to say this is a provision dating back to the 50s. Since that time, there has
been a huge development in society, in the approach of society to same sex relationships, so
this article should be applied in a modern way, taking account of this evolution. The Court
should interpret this provision so as to oblige the states to recognize same sex marriage
because the convention is a living instrument. In the context of article 12, we are not talking
about registered partnership but we are talking about marriage. As same sex couple, they are
entitled to marry. A possibility is to consider that men and women: its not said that they
have to marry each other. Here, in the article 12, its according to domestic law. The writing of
the article was very careful at the time in referring to the possible extent by domestic law.
Would you say that the article 12 opens an invokable right for marriage now we have
suppressed the problem of words men and women?
52: The Court introduces the subject with another case: Christine Goodwin. Its a opening.
Shes a post-operated woman and she want to marry a man. There is a reliance to European
Charter.
53: The court acknowledged.
54: deliberate wording of the provision
55: the Court is aware of the context in which that provision emerged.
57: argument by the applicants. The consequences of extending article 12 to same sex
couples would be to oblige national law makers to provide for access to marriage to same sex
couples. Belgium would not have a problem with that but many others countries would.
58: courts answer. The Court is rather reserved (cautious attitude). Why? Because there is
no European consensus regarding same sex marriage. The fact that on sensitive moral issues,

69

there is no consensus among the contracting states is always a reason for the Court to give the
states a large margin of appreciation, not to impose views on the states which are, in the
sensitives matters, of a different opinion.
60: The major argument by the applicants was the reference to the UE charter of
fundamental rights (article 9). There is not this insistence on men and women. Its drafted in a
more general way, there is no emphasis on the sex difference between the partners. This is a
important argument by the applicant: the Charter is much more in line with todays views on
this issue and the Court should interpret article 12 in light with this Charter.
Courts answers to that argument. The Charter too makes reference for the scope of article 9
to the national laws. The Charter does no impose any views either on whether they should be
same sex marriage or not. We have a similar situation: a reference to national laws, leading to
the conclusion that its allowed to any law-maker to organize same sex marriage but no
obligation to do so.
61: conclusion on article 12. The professor address our attention to the words no longer.
Its opening the door to the applicability of article 12 to same sex marriage to the extent that
its allowed by national law. A number of consequences will flow from that, consequences
under article 12. But whether or not you want to go for it, its the choice of the national
lawmakers and not the Courts choice. The Court is quite cautions in imposing choices to
national states.
62: explanation for the cautious attitude of the Court. There are different views on what
marriage is. The Court says that it does not want to substitute its view for those of the national
lawmakers because they are best placed to assess. National authorities are better placed
because they are closer to the people. This is the key difference between the approach taken in
respect of article 8, 9, 10, 11 and 12 compared with the approach taken in respect of article 3,
5 or 6. Under 3, 5 or 6, the approach is rather strict. Under 8,9,10,11 and 12, it depends. You
have the role played by the margin of appreciation and in this context, the question whether
there is a consensus among European states on certain issues and the fact that a national
lawmaker is closer to the people is essential in the courts attitude. Had there been a clear
overwhelming majority in Europe in favour of same sex marriage? If only Austria would have
been the one lack behind, there would have been no hesitation for the Court to say its a
violation. Its also answer to the all people that says that on important issues like absorption,
euthanasia, same sex marriage, the Court should take the lead. But if the Court took the lead,
it would face so much criticism.
63-64: no violation of article 12
You have here a kind of evolution in demi teinte because on article 12, you have the
acknowledgement that this provision is applicable but there is no violation. This is a mix
statement with some elements of progress and some elements of cautioness and prudence.

Section 3: Article 8 + Article 14

89: concerning article 14, two elements need to be kept in mind:
(1) not autonomous
(2) the list on grounds on which discrimination is prohibited is not exhaustive: other status
and such as.
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Its no general prohibition against discrimination. Its a provision, which operates only in
combination with another substantive provision. In others words, it prohibits discrimination in
the enjoyment of the rights and freedoms set forth in the Convention. Therefore, you always
find article 14 combined with another substantive provision in the case law. This is the claim
made by the applicants here: a discrimination in the enjoyment of article 8.
Fall within the ambit: E.B. v. France: adoption by single persons (in case, she was
homosexual). The argument is to say that article 8 is a right to adoption. If we want apply 14,
we cant apply it alone. But in the case of adoption, the article 8 doesnt protect a right to
adoption. But it had to do with private life. This combination doesnt say that the article
invoked will be applicable. This combination has be seen in a flexible way and not as an
applicability way. Its for the benefit of people. We extend the scope of the ambit without
extend the scope of the provision!
65: applicants complaint. They complained about being discriminated against on account on
their sexual orientation since they were denied the right to marry. Why reference to this
registered partnership act? Because on the 1st of January 2010, a new law in Austria was
entered into force organizing the registered partnership in Austria but the facts of this case
preceded the entry into force of that law. So, we dont have to take into account this new
Austrian law. We can see from this complaint that the scope of the complaint is extended. Its
no longer about marriage and same sex marriage; it is about also having the relationship
recognized by law.
The big question in this case was whether the Court would acknowledge stable same sex
relationships as families within the meaning of article 8. The former case law on
discrimination on the ground of sexual orientation was always based on private life but the
Court never went so far as considered stable same sex relationships as families. It always
stopped at the private life.
93: taking into account by the court of recent developments in the mentality in respect of
same sex relationships.
94: conclusion of the Court. You need some conditions: cohabitation and stability. At this
stage, we know that we are in article 8 and that allows article 14 to come into play. The
precondition to apply article 14 is to determine whether article 8 is applicable. Here, the
conclusion is yes and therefore we can move on to assessing whether article 14 has been
complied with or not.
96: Discrimination is treating differently people in relevantly similar situation or not treating
differently people who ought to be treated differently. For this case, we are in the situation
where different people in relevantly similar situation are treated differently.
What is the test here? A treatment is discriminatory if there cant be a justification. The
justification will require a legitimate aim and a reasonable relationship of proportionality
between the mean used and the aim sought to be pursued. All of this has to be considered
having regards to the margin of appreciation.
97: there are a number of suspect grounds were the margin of appreciation of the State is a
very narrowed one: gender, sexual orientation and race. In jargon, we speak about the suspect
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grounds. On the other hand, in economic and social matters, the margin of appreciation is
always wide.
99: the issue is whether they are capable of such a relationship and the Court has no
hesitation. Their need for legal recognition is the same.
101: under article 8, the applicants said that they want to be allowed to marry or they want
another form legal recognition of their relationship with the same consequences as marriage.
The Court says that it cant say, under article 8, something totally different and contradictory
to what she said under article 12. It has to interpret the Convention in a coherent way. So the
claim that under article 8, the right to marry should be recognized is rejected for the reason
that the Convention should be interpreted in a coherent way.
105 and following: The courts reaction to the issue about the alternative legal status. There
is an interesting illustration of the operation of the consensus for the margin of appreciation.
There are two different categories of consensus: there is on one hand an emerging European
consensus towards legal recognition but not yet an establish consensus. We see here how
careful the Court is in analysing situations and not pushing through developments, which have
not yet emerged, from society in a satisfactory way. So, the result of that is that the national
authorities have a rather wide margin of appreciation.
This margin of appreciation, which is the result of the fact that there is no established
consensus, has an impact on the timing as well as on the status of that new Austrian law. The
argument by the applicants was to say yes there has been a reformed in Austria and this was
introduced by a law, which entered into force on the 1 st of January 2010. But that law came
too late because they are suffering since quite some time from this absence of any possibility
of legal recognition of their status (the law came too late) and secondly the status organized
by that law is not sufficiently similar of the status of married people. So in the applicants
view, there was a double deficit. They challenged that double deficit under article 14
combined with article 8. We could say in regards of this new law: too little too late.
The Courts answer to that argument: since my margin of appreciation here is rather large
because of the absence of established consensus, its for the national authorities to determine
the timing of their legislative reform and of the content of the status created. The fact that they
are fewer rights connected to that registered partnerships as compared with marriage does not
amount to a violation of article 14 combined with 8. In other words, there is no basis in article
8 or in article 14 to come to the conclusion that a register of partnership of same sex couple
has to be identical, in terms of the content of the status with marriage.
These applicants could have claimed a violation of article 14 combined with their right to
private life rather than family life. But what is the answer to that? They could have claimed
something but the notion of family life much more goes to the heart of their preoccupation.
Its more suitable to their claim to invoke family life. The claim for a recognition of the
partnership is much better covered by the notion of family life than private life. This also
opens the possibility to apply, at the latter stage of the developments of case law, a right,
which has been stated by the Court in connection with family life to same sex couples. One
example is childcare issues. If you have same sex couples, you probably may have
relationships of adoption within that family which would then open the door possibly for a
recognition of rights in connection with the children who are being taken care by that couple.
Therefore, the recognition of that family life has more far reaching consequences in terms of
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the right connecting with families and with parenthood. In others words, it goes much more to
the heart of their preoccupation and is more suitable to deal with the consequences of their
relationship in terms of family tights (possibility with children).

73

Part VII: Property Right:

Protocol
n1,
article
1:
Pressos v. Belgium
Chapter 1: Facts
All ships, which want to go to Antwerp, have to go through a very difficult and dangerous
channel. You need to be a professional expert to stir ship from the North Sea to Antwerp
through this channel. So, what happened is that all big cargo ships from certain size, which
wants to reach Antwerp, have to take on board professional pilots. At the time of this story,
most of these professional were the state officials, mandated by the State. Nonetheless,
despite the fact that they were specially trained, accidents rather frequently occurred. The
particularity of these accidents was that repairs to be made on such ships were expensive. That
was a kind of custom also at the time (not legally based) that the state could not and never be
made liable for any of the accidents caused by its pilots, despite the fact that they acted in
their capacity as state agents. So the solution to that was a system of assurances, which were
rather expensive.
In 1983, all of a sudden, the Court of cassation made a decision to the effect that the state was
liable for these accidents caused out of negligence, since the pilots were state agents. The
immediate reaction to that new case law was that quite a number of cases concerning such
accidents were brought before the Belgian courts, with huge amounts of damages being
claimed. This was a time when the Belgian authorities became wary of the total bill of that
new case law.
The Belgian parliament passed a new law in 1988, according to which there would be no state
liability for such kind of accidents in the future and as for the past cases, all claims based on
the 1983s jurisprudence were extinguishing with retrospective effect going back 30 years.
That was a radical measure and the justification given by the parliament was that it had to
protect the state financial interests.
As a result, a number of ships owners challenged this law first before the arbitrary Court but
they were unsuccessful and then came to Strasbourg. They claimed a violation of article 1 of
protocol 1 (right to property).

Chapter 2: Additional protocol

Why the right to property is enshrined in an additional protocol to the Convention and not in
the Convention itself? It has to do with the fact that at the time in the 50 there was hesitation
as to whether the right to property properly belongs to human rights. Indeed, still today, you
come across reflexions that maybe the protection of the right to property should be less
intensive then for instance the protection against torture. There is something difficult in
accepting that property is considered on the same level in terms of human rights and
protection as such elementary rights as the prohibition against torture. Maybe, there is some
truth in that. Still today, we have a number of countries, who have not yet ratified this

74

protocol with the consequence that they are not bound by this right of property (like
Switzerland).

Chapter 2: Notion of possession

25: the key notion of that provision is the notion of possession. In order to know whether
the ship owners can claim any right under article 1 of protocol 1, we have to know whether
their claims can be considered possessions within the meaning of article 1 of protocol 1.
Oneryildiz v. turkey (124): concept of possession. It must be interpreted in an autonomous
way. Possession is a rather vague notion and the first step is to properly interpret that notion.
We are not bound by classification of domestic law.
The first category of possessions capable of giving rise to property right is the physical goods.
The next category is rights and interests, which covers assets. The scope of the possessions
under the Convention is a broad scope. Claims certainly are part of the possessions to be
protected under article 1. But there is one condition for claims to be protected under article 1
is to give rise to a legitimate expectation. The law must be such that you can consider that
a judge will acknowledge your right. It has a lot to do with the state of the legislation.
In the case of Pressos, the argument by the applicants was that they all had a claim against the
state and that they had a legitimate expectation in respect of that claim. And by a way of
consequence, they had a possession protected under article 1 of protocol 1.
31: particularity of the Belgian law on torts: the claim comes into existence on the very
moment where the accident occurs. The ship owners had an enforceable claim under the law
of tort when all of these accidents occur. That was well before the new law, which
extinguished all of these claims. So the conclusion is that they had a legitimate expectation on
the basis of the law of torts at the time and this is why they had a possession within the
meaning of article 1 of Protocol 1. So the question was whether that right was violated
because of this new law.

Chapter 3: Interference?
34: the applicants had a legitimate expectation protected as possession under article 1
Protocol 1. The new act of 1998 extinguished all that and on that basis, the Court says this is
deprivation of property. Taken away these claims amounts to a deprivation of property. Is that
acceptable? Is that interference was justified?
35: in the face of expropriation, there two conditions to be met: public interest and
proportionality.
In terms of the public interests, in respect of social and economics issues, there is most often a
large margin of appreciation. And that is also the case here.
36: reasoning by the Belgian government:
(1): the need to protect the state financial interests
(2): need to re-establish legal certainty in the field of tort
(3): need to bring relevant Belgian legislation
37: answer by the Court. In social and economic matters, the Court said that it doesnt want
to intervene too much. Unless it was manifestly unreasonable, which was not the case here.
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38: The crucial issue here is the proportionality (= balancing the public interests invoked and
the means used) because here the means were quite radical. In property issues, a
proportionality issue would always be the amount of the compensation. Whether the
compensation was sufficient? That is 38. What is normal, under article 1 in case of
expropriation, is an amount reasonability related to the value of the property taken. And a total
lack of compensation can only be acceptable in exceptional circumstances. In this case, we
have an extinguishment of case, which is a total deprivation and in terms of compensation,
provided for by law, there was nothing. So, we have to analyse whether the circumstances
justifying this total absence of compensation were really exceptional.
43-44: conclusion. A distinction is being made between the effects for the future and a
retrospective effect. The Court accepts a limitation of claims for the future to the extent that
what it is at stake is the future effect of the law (everybody know what the rules of the game
are, legal certainty is preserve). But for the retrospective effect, this is changing the rules of
the game in a radical way and this is out of proportion. So there was a violation of article 1 of
protocol 1.
At the end, the cases went back before the Belgian courts and were re-opened in light with
that Strasbourg case law. And the ship owners got full compensation. Not only a
compensation in a reasonable relationship to the amount of the claim at the stake but full
compensation on the basis of torts law in Belgium.

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