Standards of International Judicial Review: Von Hannover and Fatullayev Compared
[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]
This post is the second in a series of three.
Last week I suggested that comparing the Von Hannover (2) Case of 2012 and the Fatullayev Case of 2010, both of which concern reviews of freedom of expression decisions given by supreme domestic courts, is a good way of understanding the variable standard of judicial review developed by the European Court of Human Rights.
The Von Hannover Cases (1) and (2)
The Von Hannover (2) Case was the second appearance of Princess Caroline of Monaco before the Strasbourg Court, arguing that the German press had violated her right to privacy. In the first Von Hannover Case of 2004, Princess Caroline advanced the argument that given that she does not hold a public office or have any public functions, the continuous publication of pictures depicting her private life in the German press violated her right to privacy, and the German Courts had failed to protect her. In the first case, the Strasbourg Court found a violation. In the second case it did not. From Princess Caroline’s perspective, this outcome is odd. The explanation lies in how the Strasbourg Court defines its standard of judicial review of domestic courts.
In its first review of the case in 2004, the European Court of Human Rights held that, as a matter of principle, when the right to privacy and the right to freedom of expression are in competition, domestic courts had to show that they are considering the adequate protection of each right. The Strasbourg Court stated that the standard of human rights review developed by the German Constitutional Court in its judgment of 15 December 1999 was a test that a priori favoured freedom of expression and risked under-protecting the right to privacy. The standard afforded protection to a figure in contemporary society ‘only if she was in a secluded place out of the public eye to which persons retire with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public” (Von Hannover (1) para 54). The Strasbourg Court held that ‘the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance’ (Von Hannover (1) para 75) and that, therefore, the standard failed to offer real and practical protection of human rights, a central object and purpose of the whole Convention system. The Court consequently found a violation of the right to privacy based on the argument that the German Courts’ conduct in reviewing the case was out of step with European human rights law.
In Von Hannover (2) the Princess, in the aftermath of the printing of more pictures of her in the German press, returned to the Strasbourg Court alleging that new violations of her right to privacy had taken place. The applicant thought the German Courts had paid no heed to the Strasbourg Court’s judgment. The Strasbourg Court disagreed with the applicant, deciding that the fact that the German press had been allowed to print pictures of her did not in itself point to a violation of the Convention. What concerned it was whether the German Courts had appropriately balanced the rights of privacy and expression in their reasoning for allowing the publication of further pictures. The Court went on to make one of the most explicit definitions so far of its role as an international court. It said in para. 105 that:
In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on.
It continued (para. 107):
Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.
The Fatullayev Case
This case concerned the imprisonment of a journalist in Baku as a result of two separate sets of statements he made in different publications. With regard to both sets of statements, the Strasbourg Court questioned whether the domestic courts had offered ‘relevant and sufficient reasons’ in light of the long-standing principles established by the Court concerning the circumstances under which the freedom of expression of journalists can be limited. A central finding of the Court in the Fatullayev Case was that not only were the reasons offered by the domestic courts not relevant or sufficient on both counts of criminal conviction, but on one count, they were also arbitrary. In a stark statement, it said (para. 124):
the Court finds that the domestic courts arbitrarily applied the criminal provisions on terrorism in the present case. Such arbitrary interference with the freedom of expression, which is one of the fundamental freedoms serving as the foundation of a democratic society, should not take place in a state governed by the rule of law.
This led the Strasbourg Court to take a further step towards strong judicial review, holding that (paras. 176-177):
in view of the above findings of violations of Article 10 of the Convention, it is not acceptable that the applicant still remains imprisoned. Accordingly, by its very nature, the situation found to exist in the instant case does not leave any real choice as to the measures required to remedy the violations of the applicant’s Convention rights.
Having regard to the urgent need to put an end to the violations of Article 10 of the Convention, the Court considers that, as one of the means to discharge its obligation under Article 46 of the Convention, the respondent State shall secure the applicant’s immediate release.
Given that ordering the release of a convicted prisoner is as intrusive as an international court can get, how can we make sense of the co-existence of judgements like that of Von Hannover with that of Fatullayev in Strasbourg case law? What legal policy implications follow from them? I will turn to these questions in my next post.