Tag: european

Preventive Detention Upheld for 2011 Royal Wedding Opponents (ECtHR)

On 28 March 2019, the European Court of Human Rights ruled unanimously, in the case of Eiseman-Renyard v UK (App. No.: 57884/17), that the preventive detention of opponents of the 2011 Royal Wedding did not breach their rights under Article 5 of the European Convention on Human Rights. In fact, relying on the doctrine of subsidiarity, the Court did not even properly consider the merits of the case but instead classified the application as ‘manifestly ill-founded’ and therefore wholly inadmissible.

The main applicant, Hannah Eiseman-Renyard, along with other applicants, arrived in the centre of London between 10 and 11 AM on the day of the wedding of the Duke and Duchess of Cambridge (29 April 2011) with the intention to participate in a ‘zombie picnic’ organised by the ‘Queer Resistance’. Before any demonstration took place, the applicant had been arrested by the police for the purpose of ‘preventing a breach of the peace’. The police were acting on information that the group was planning to gather at Westminster Abbey at 11 AM to throw maggots (as confetti) during the wedding procession. The applicant was taken to the Belgravia police station where she were detained until 3:45 PM, i.e. until the wedding had ended. She was then released with no charges.

Firstly, the ECtHR considered the classification of the complaint and ruled that it should be reviewed under Article 5(1)(c) of the ECHR, determining that Article 5(1)(b) of the ECHR, even though raised by the applicant, was irrelevant in this case in light of the holding in S., V. and A. v. Denmark (App. Nos.: 35553/12, 36678/12 & 36711/12) (para 39). Article 5(1)(b)&(c) state:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

Secondly, the ECtHR considered the domestic legal basis for the detention. The Court recognised that “breach of the peace is a common-law concept dating back to the tenth century” whereby “every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur” (R (Laporte) v Chief Constable of Gloucester [2007] 2 AC 105) (para 26). In line with the domestic authorities, the Court recognised that “the power is confined to a situation in which the person making the arrest reasonably believes that a breach of the peace is likely to occur in the near future. Moreover, there is only a power of arrest if it is a necessary and proportionate response to the risk.” (para 27). In this respect, the ECtHR held that “there was no dispute that the applicants’ detention was lawful under domestic law. It may be noted that the High Court was satisfied that the arresting officers had reasonable grounds for believing that a breach of the peace was imminent.” (para 41).

Thirdly, the ECtHR considered the compliance of the common law offence of ‘breach of peace’ with the rights guaranteed under Article 5 of the ECHR. On that issue, the Court found that:

The offence of breach of the peace which all the applicants were charged with was sufficiently concrete and specific in the circumstances. Against the factual background of the royal wedding in terms of crowd size and international interest, coupled with the threat level of ‘severe’ in the United Kingdom at the relevant time, the Court finds that an objective observer would be satisfied that the applicants would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by their detention. Finally, it notes that the applicants were released as soon as the imminent risk had passed and in all cases their detention was for a matter of hours, which the Grand Chamber identified as broadly appropriate in the context of preventive detention…” (para 43).

Finally, the ECtHR relied on the doctrine of subsidiarity whereby an in-depth consideration of relevant issues in light of ECtHR’s jurisprudence by a domestic court creates a strong presumption in favour of a domestic ruling. In line with this approach, the Court deferred to the domestic rulings:

“In the circumstances of the present case the domestic courts in fact examined these elements in the context of their analyses of national law, the Court of Appeal observing that there was no practical distinction between the test in common law and under the Convention (see § 87). The Supreme Court noted that:

“5. The Administrative Court rejected the broad complaint that the police adopted an unlawful policy for the policing of the royal wedding. After close examination of the facts of the individual arrests, it also held that the arresting officers had good grounds to believe that the arrests were necessary in order to prevent the likelihood of an imminent breach of the peace. It dismissed as unrealistic the argument that lesser measures would have been adequate to meet the degree of risk. Continuous police supervision was not a feasible option, given the many demands on police resources. The claims that the police acted unlawfully as a matter of domestic law therefore failed.

The Court considers there are no cogent reasons (see S., V. and A. v. Denmark, cited above, § 154) which would lead it to depart from the Supreme Court’s finding for the second and fifth applicants that:

“31. In this case there was nothing arbitrary about the decisions to arrest, detain and release the appellants. They were taken in good faith and were proportionate to the situation”…

Overall, the ECtHR held “that the domestic courts struck a fair balance between the importance of the right to liberty and the importance of preventing the applicants from disturbing the public order and a causing danger to the safety of individuals and public security.”

UK Supreme Court Limits Compensation for People with Quashed Convictions

On 30 January 2019, the UK Supreme Court held 5-2, in the case of R (on the application of Hallam) v Secretary of State for Justice [2019] UKSC 2, that people convicted of criminal offences, who have their convictions subsequently overturned, had no right to compensation unless they could demonstrate that the new evidence proved ‘beyond reasonable doubt‘ that they had not committed the offences.

The Appellant in this case spent about seven years in prison before his conviction was eventually quashed for being unsafe in light of newly discovered evidence. He then applied for compensation under section 133 of the Criminal Justice Act 1988 (as amended by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014). The entitlement to compensation under Section 133 of the Criminal Justice Act 1988 is based on the concept of ‘miscarriage of justice’ which is defined under section 133(1ZA) of the Criminal Justice Act 1988 as occurring ‘if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence‘. The Appellant’s application for compensation was refused by the Secretary of State for Justice on the grounds that, inasmuch as newly discovered evidence cast doubt on his conviction as to render it unsafe and therefore resulted in quashing, it did not prove beyond reasonable doubt that the Appellant had not committed the offence. The Appellant brought judicial review proceedings against the decision claiming that the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988 was incompatible with the presumption of innocence under Article 6(2) of the European Convention on Human Rights.

In the majority opinion written by Lord Mance, the five Justices held that based on the jurisprudence of the European Court of Human Rights, most notably the case of Allen v UK (App. no. 25424/09), the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988 did not breach Article 6(2) of the European Convention on Human Rights. The case was concerned with claims for compensation where new evidence rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted. This type of claims also falls short of the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988, yet the European Court of Human Rights did not consider it incompatible with Article 6(2) of the ECHR. Even though Allen v UK (App. no. 25424/09) was never concerned with the requirement to prove innocence beyond reasonable doubt itself, the reasoning of the European Court of Human Rights prompted the majority in R (on the application of Hallam) v Secretary of State for Justice [2019] UKSC 2 to uphold section 133(1ZA) of the Criminal Justice Act 1988 and confirmed that the Appellant had no right to compensation despite spending seven years in prison.

Lord Reed and Lord Kerr dissented. Lord Reed, with whom Lord Kerr agreed, accepted that compensation could be denied under Allen v UK (App. no. 25424/09) in cases where new evidence rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted, but argued that section 133(1ZA) of the Criminal Justice Act 1988 was nevertheless incompatible with the presumption of innocence under Article 6(2) of the ECHR, because it effectively required the Secretary of State for Justice to decide whether persons, whose convictions had been quashed, established that they were innocent (para 187).

Given the outcome of the case, it is possible that the European Court of Human Rights will have a final say on the issue.

Secret UK Police Database of Peaceful Protesters Violates Article 8 of ECHR (ECtHR)

On 24 January 2019, the European Court of Human Rights ruled unanimously, in the case of Catt v UK (App. no.: 43514/15), that the retention by police of information on the Domestic Extremism Database about a 91 year-old applicant’s involvement in political protests breached his right to private life under Article 8 of the European Convention on Human Rights.

The applicant had participated in political protests for decades and he had never been convicted of any criminal offence. However, the police had collected his personal data and retained it in a searchable database under ‘Domestic Extremism’, without his knowledge or consent. There was also nothing stopping the police from retaining the data indefinitely, even in the absence of any evidence of criminal behaviour on the part of the applicant. In 2015, the UK Supreme Court ruled 4-1, in the case of R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9, that the applicant’s rights under the European Convention on Human Rights were not violated by the retention of his data by the police. The European Court of Human Rights disagreed.

The Court first held that there had been indeed “a pressing need to collect the personal data about the applicant” as “it is in the nature of intelligence gathering that the police will first need to collect the data, before evaluating its value” (para [117]). Secondly, the Court also recognised that the police had indeed had appropriate reasons to gather intelligence about members of Smash EDO (the protest group to which the applicant belonged) as the group had members that were known to be violent and potentially criminal (although not the applicant himself) and the applicant “had after all decided to repeatedly and publicly align himself with the activities of a violent protest group” (para [118]).

However, in the end, the majority of the Court, under the heading of ‘proportionality analysis’ of Article 8(2), decided that there was no “pressing need to retain the applicant’s data“. Although the Court recognised that personal data (such as applicant’s) might be retained over some time after having been legitimately collected, the whole scheme lacked appropriate safeguards preventing potential abuse (para [119]). The Court was most concerned with the fact that “whilst the applicant could and did request the disclosure and destruction of his data, this safeguard appears to have been of limited impact given the refusal to delete his data or to provide any explanation for its continued retention – including the later disclosure without explanation of the retention of additional data… So far as the Court is aware, at least some of the applicant’s personal data concerning his involvement in non-violent protest was collected over six years ago and remains in the domestic extremism database… despite the fact that the police concluded, and the domestic courts affirmed, that the applicant was not considered a danger to anyone” (para [120]).

Finally, the Court pointed to the possibility of undermining the democratic process by the government collecting, retaining and potentially abusing data about one’s legitimate political activities:

“123. Moreover, the absence of effective safeguards was of particular concern in the present case, as personal data revealing political opinions attracts a heightened level of protection (see paragraph 112 above). Engaging in peaceful protest has specific protection under Article 11 of the Convention, which also contains special protection for trade unions, whose events the applicant attended (see paragraph 10, above). In this connection it notes that in the National Coordinator’s statement, the definition of “domestic extremism” refers to collection of data on groups and individuals who act “outside the democratic process”. Therefore, the police do not appear to have respected their own definition (fluid as it may have been (see paragraph 105)) in retaining data on the applicant’s association with peaceful, political events: such events are a vital part of the democratic process (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-�I). The Court has already highlighted the danger of an ambiguous approach to the scope of data collection in the present case (see paragraph 97 above). Accordingly, it considers that the decisions to retain the applicant’s personal data did not take into account the heightened level of protection it attracted as data revealing a political opinion, and that in the circumstances its retention must have had a “chilling effect”.”

Interestingly, although the judgment was unanimous as to its outcome, it contained a Concurring Opinion of Judge Koskelo and Judge Felici. The opinion focused on the fact that the issue of the lack of safeguards and the possibility of abuse of data retained in the database should have been dealt with under the heading of ‘in accordance with the law’ of Article 8(2), as “…the phrase “in accordance with the law” […] requires not only that the impugned measure must have a basis in domestic law, but that it must also be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and is inherent in the object and purpose of Article 8. Thus, the requirement of lawfulness also refers to the quality of the law in question. This entails that the law should be adequately accessible and foreseeable as to its effects...” (para [2]).

The Judges held that, given the lack of sufficient safeguards concerning the database and the fact that it the applicant was unable to get his data deleted even in the absence of any evidence of criminality on his part, “…it would have been appropriate for the Chamber to focus its analysis more thoroughly and consistently on the assessment of the “quality of the law” aspect of the case, because that is where the crux of the case lies, instead of leaving that issue open and resolving the case on the basis of the assessment of “necessity”. …[T]he quality of the relevant legal framework was not adequate in a context such as the present one, and therefore the interference was not “in accordance with the law” within the meaning of Article 8 § 2. This finding is sufficient to conclude that there has been a violation of Article 8″ (para [15]).

It is worth remembering that the European Court of Human Rights has not said in this case that a database containing information about political activists violates the European Convention on Human Rights, even where there is no evidence of any criminal activities. The case in fact has confirmed that states are entitled to gather intelligence about political protesters if the group they associate themselves with could be reasonably believed to produce criminal activities. However, any database containing such intelligence must have adequate safeguards concerning the retention policy, access by 3rd parties as well as persons concerned and the possibility of deletion, either automatic or on a person’s request.

Homeschooling Unprotected by ECHR (ECtHR)

On 10 January 2019, the European Court of Human Rights ruled, in the case of Wunderlich v. Germany (App. no.: 18925/15), that the German ban on homeschooling did not breach the right to private and family life under Article 8 of the European Convention on Human Rights. The case was brought by a Christian family who had refused to register their oldest daughter in a school in accordance with German law. As a result, they were fined and prosecuted by the German authorities and the child was temporary taken into care to enforce the school attendance requirement.

The European Court of Human Rights held that the actions of the German state, although interfered with the Article 8(1) rights, were justified for the purposes of protecting the health, rights and freedoms of the children (under Article 8(2)). When considering the case, the Court referred to its previous jurisprudence on the issue of compulsory public education. It recalled that “the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems...” (para 50).

The Court held further that although the removal of the child from the parent’s care was a very intrusive measure, it was not disproportionate given that it was only temporary and that all other measures (such as fines and regulatory penalties) had already failed to persuade the parents to comply with the school requirement. In considering the question of proportionality, the Court gave “due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation...” (para 47).

The case leaves no doubt that homeschooling is not protected under the European Convention on Human Rights. In contrast, the US Supreme Court has ruled on several occasions that the US Constitution protects the right to homeschooling. As early as 1925, in the case of Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Court struck down an Oregon statute requiring all children to attend public school. It was held that children were not ‘the mere creature[s] of the state’ (para 535) and that the responsibility for education belonged to parents so the Court deemed the ability to make educational choices a ‘liberty’ within the meaning of the 14th Amendment (thereby expanding the so called Substantive Due Process doctrine in its jurisprudence). Furthermore, almost 50 years later, in the case of Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court also upheld the right of an Amish family to withdraw their children from public school past 8th grade It was ruled that States could not force families to send their children to attend school where it would infringe their (legitimate) religious beliefs protected under the First Amendment.

Assisted Suicide Remains Unlawful (UKSC)

On 27 November 2018, in the case of R (on the application of Conway) Secretary of State for Justice [2018] UKSC B1, the UK Supreme Court refused to consider an appeal from the High Court (Divisional Court) where the Court had upheld the ban on assisted suicide as compatible with Article 8 of the European Convention on Human Rights. Assisted suicide remains illegal in the United Kingdom under the Suicide Act 1961, s2(1), despite numerous attempts to overturn the ban as in breach of the European Convention on Human Rights. In its short opinion, the Supreme Court relied on previous precedents from the European Court of Human Rights leaving the question of the so called ‘right to die’ for states to decide. As the decision was merely on the application for permission to appeal, the Claimant had to demonstrate only a ‘prospect of success’ upon a full hearing that would justify giving the permission. Nevertheless, the Court held “not without some reluctance […] that in this case those prospects are not sufficient to justify giving permission to appeal” (at para. 8).

Since the enactment of the Human Rights Act 1998, rendering the European Convention on Human Rights directly applicable in the United Kingdom, there have been several challenges to the Suicide Act 1961 as incompatible with the Convention. Most notably, in the case of Pretty v United Kingdom (2002) 35 EHRR 1, following a dismissal by the UK House of Lords, the European Court of Human Rights also ruled that Article 2 of the Convention could not be interpreted as containing any right to die. It was further held that although the ban on assisted suicide interfered with the right to private life under Article 8(1) of the Convention, it could be justified ‘for the protection of the rights of others’ under Article 8(2). 13 years later, a similar challenge was mounted in the case of Nicklinson v United Kingdom (2015) 61 EHRR SE7 but the European Court of Human Rights maintained its position from 2002 relying on a wide margin of appreciation states enjoyed on the question of assisted suicide. Interestingly, before the case reached the European Court of Human Rights, the UK Supreme Court (having succeeded the Appellate Committee of the House of Lords), had followed Pretty only 7-2, with Lady Hale and Lord Kerr dissenting. In her Dissenting Opinion, Lady Hale “reached the firm conclusion that [the] law [was] not compatible with the Convention rights […and…] little [was] to be gained, and much to be lost, by refraining from making a declaration of incompatibility.” (R (Nicklinson) v Ministry of Justice [2014] UKSC 38 at para. 300).

Paradoxically, Lady Hale and Lord Kerr, who were both willing to hold the ban on assisted suicide incompatible with the European Convention on Human Rights in 2014, constituted the majority of the Supreme Court panel (along with Lord Reed) refusing the permission to appeal in Conway. In fact, they were in the position to accept the case on behalf of the Court, even in the face of opposition of Lord Reed.

The Grand Chamber Vindicates Russian Opposition Leader Navalny (ECtHR)

On 15 November 2018, the Grand Chamber of the European Court of Human Rights ruled unanimously in the case of Navalny v Russia (App. no.: 29580/12) that the treatment of Russian opposition leader Alexei Navalny by the Russian government had violated his rights under:

  • Article 5 of the Convention (concerning arbitrary arrest on 7 occasions and pre-trial detention on 2 occasions);
  • Article 6 of the Convention (concerning 6 out of 7 administrative proceedings leading to his conviction of administrative offences);
  • Article 11 of the Convention (concerning the inability to peacefully assemble).

Furthermore, the Court also held 14-3 that there had been a breach of Article 18 considered in conjunction with Article 5 and Article 11 of the Convention. At the end, the Court ordered the Russian government to pay €50,000 in respect of non-pecuniary damage, €1,025 in respect of pecuniary damage and €12,653 in respect of costs and expenses, which adds up to €63,678 in total. The ruling comes after the Russian government appealed against the original judgment of the Third Section of the European Court of Human Rights. The Grand Chamber has now upheld the main bulk of the Third Section’s reasoning unanimously dismissing the Government’s objection:

  • of non-exhaustion of domestic remedies under Article 5 of the Convention;
  • of non-exhaustion of domestic remedies under Article 11 of the Convention;
  • as to the failure to comply with the six-months rule under Article 18 of the Convention.

Mr Navalny lodged a complaint against the Russian government in 2014 effectively claiming a political persecution through different methods and over an extensive period of time. In respect of Article 5, Navalny complained about having been arbitrarily arrested on 7 occasions while attending peaceful demonstrations, including twice for an alleged failure to obey a police order (on 9 May 2012 and 24 February 2014) and about having been detained for over 3 hours in violation of the statutory time-limit pending his trial (paras. 68-9). In respect of Article 6, Navalny argued that on all 7 occasions when he was arrested, he was unfairly convicted of an administrative offence in violation of his right to a fair hearing, including the right to the equality of arms, presumption of innocence, impartiality of the tribunal and the adversarial nature of the proceedings (para. 73). In respect of Article 11, Navalny claimed that arresting him 7 times while attending peaceful demonstrations had violated his freedom of peaceful assembly (para. 85).

Finally, in respect of Article 18 (stipulating that “the restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”), arguably the most interesting element of Mr Navalny’s claim, he:

“156. … submitted that since the 2011-2012 protest rallies in which he played a leading role, the authorities had become wary of his participation in any kind of informal gathering. They sought to punish him for his political criticism and took steps to discourage his supporters. He was specifically and personally targeted by the authorities who acted to suppress political dissent. He referred, in particular, to the footage of his arrest in front of the courthouse on 24 February 2014 (the sixth episode). He also alleged that he had been arrested even though the gatherings in question had been peaceful and had raised no public-order issues. The procedure set out by law for drawing up the administrative offence report had been manipulated so as to remove him from the event venue unnecessarily and to detain him without a lawful purpose. Whilst he had promoted the ideas and values of a democratic society … and as the most prominent opposition figure advocating these values, he had been harassed precisely because of his active engagement in political life and the influence that he had on the political views of the Russian people.

On that subject, the Court held that:

“168. … It cannot be overlooked that the arrests took place in the context of the applicant exercising his Convention right to freedom of assembly. The Court finds that a certain pattern may be discerned from the series of seven episodes. Moreover, the pretexts for the arrests were becoming progressively more implausible, whereas the degree of potential or actual disorder caused by the applicant diminished. It is also noteworthy that in the first four episodes the applicant was one of the leaders of the gatherings, and this could explain to a certain extent why he was among the first persons to be arrested. However, this was not the case in the subsequent episodes where the applicant did not play any special role.

169. In the fifth episode (on 27 October 2012) the applicant was one of some thirty activists taking part consecutively in a stationary demonstration. There were several prominent public figures among the participants and no obvious leadership. Moreover, according to the official version, the applicant was arrested not in connection with the demonstration itself but for holding a “march” when he was walking away from the venue followed by a group of people, including journalists. Nothing suggests that the applicant had arranged for these people to accompany him, or that he was somehow in charge of his followers or that he was in a position to control them in the very brief moments before his arrest (see paragraph 32 above).

170. An equally evident example was the sixth episode (on 24 February 2014) with his arrest in front of the courthouse, where he was merely one of the persons waiting to be allowed inside the building to attend the public hearing. The police deliberately divided the crowd to retrieve the applicant and remove him from the venue, although nothing in his conduct or appearance distinguished him from other peaceful individuals quietly waiting behind the police cordon. In this episode it is particularly difficult to dismiss the applicant’s allegation that he was specifically and personally targeted as a known activist, even in the most innocuous situation remotely resembling a public gathering (see paragraph 156 above).

171. In this context, the Court’s observation in Merabishvili to the effect that in a continuous situation the predominant purpose may vary over time (§ 308) assumes particular significance. It may well appear that the predominant purpose of the measures taken against the applicant has indeed changed over the period under examination. What might possibly have seemed a legitimate aim or purpose at the outset appears less plausible over time. Thus, as held in paragraphs 126 and 127 above, whereas the Court has serious doubts that any legitimate aim as claimed by the Government existed on the first four occasions, it has found that no such aim was present on the fifth and sixth occasions, and was again highly questionable on the seventh occasion. Also, as noted above, the violations in the present case occurred despite the authorities’ increasing awareness that the practices in question were incompatible with Convention standards (see paragraph 149 above). In this connection, the Court considers that regard should also be had to the wider context (ibid., § 317), notably to its similar findings in Navalnyy and Yashin (cited above) with regard to a demonstration three months before the first of the seven episodes in the present case. Equally relevant to the general context are its findings with regard to the sequence of events that unfolded in two sets of criminal proceedings which were being conducted against the applicant in parallel. In one case it found that the national courts had “omitted to address” and “had heightened … concerns that the real reason for the applicant’s prosecution and conviction had been a political one” (see Navalnyy and Ofitserov, cited above, §§ 116-19). In the other it held that the applicant’s criminal sentence was “arbitrary and manifestly unreasonable”, that the law was “extensively and unforeseeably construed” and applied in an arbitrary manner which flawed the proceedings “in such a fundamental way that it rendered other criminal procedure guarantees irrelevant” (see Navalnyye v. Russia, no. 101/15, §§ 83-84, 17 October 2017).

172. In addition, there is converging contextual evidence corroborating the view that the authorities were becoming increasingly severe in their response to the conduct of the applicant, in the light of his position as opposition leader, and of other political activists and, more generally, in their approach to public assemblies of a political nature. The Court has previously noted the important legislative changes which took place in the reference period, increasing and expanding liability for a breach of the procedure for conducting public events (see Lashmankin and Others, cited above, §§ 301-06). In particular, the maximum amount of the fine payable for such offences was increased by twenty times; new types of aggravated offences were introduced with correspondingly severe sanctions; and the limitation period for the offences in question was extended. Further restrictions of the legislative framework on freedom of assembly introduced in July 2014, including criminal liability for assembly-related offences, although falling outside the period under consideration, may be noted as a continuous trend…

173. Against this background, the applicant’s claim that his exercise of freedom of assembly has become a particular object for targeted suppression appears coherent within the broader context of the Russian authorities’ attempts at the material time to bring the opposition’s political activity under control. At this point, the Court considers it appropriate to have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, bearing in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (seeMerabishvili, cited above, § 307).

174. At the core of the applicant’s Article 18 complaint is his alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom may only be limited in the general interest, that is, in the name of a “higher freedom” referred to in the travaux préparatoires (see paragraph 51 above). The Court considers that the ulterior purpose thus defined would attain significant gravity.

175. In the light of all the above-mentioned elements, and in particular the sequence and pattern of the events in the present case (see paragraphs 167-68 above), viewed as a whole, the Court finds it established beyond reasonable doubt that the restrictions imposed on the applicant in the fifth and the sixth episodes pursued an ulterior purpose within the meaning of Article 18 of the Convention, namely to suppress that political pluralism which forms part of “effective political democracy” governed by “the rule of law”, both being concepts to which the Preamble to the Convention refers (see, mutatis mutandisŽdanoka v. Latvia [GC], no. 58278/00, § 98, ECHR 2006‑IV, and Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 147, ECHR 2016 (extracts)). As the Court has pointed out, notably in the context of Articles 10 and 11, pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids abuse of a dominant position (see, among other authorities, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44; Gorzelik and Others v. Poland [GC], no.44158/98, § 90, ECHR 2004‑I; Leyla Şahin, cited above, § 108; and Karácsony and Others, cited above, § 147).”

Interestingly, the issue of Article 18, unlike other issues in this case, divided the Grand Chamber. Accordingly, the ruling includes a Partly Concurring and Partly Dissenting Opinion of Judges Pejchal, Dedov, Ravarani, Eicke and Paczolay in which the Judges argued that the abuse of the Convention rights perpetrated by the Russian government should have been dealt with on the basis of Article 17 (stipulating that “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth or at their limitation to a greater extent than is provided for in the Convention“) rather than Article 18 of the Convention (para. 3). The Judges admit in their Joint Opinion that the Court could not have properly considered Article 17 since the complaint had originally been made under Article 18 (paras. 4-5) but they nevertheless decided to elaborate on this subject. Firstly, they claim that Article 17 is clearly applicable to abuses of Convention rights perpetrated by states, not only individuals or groups (paras. 6-19). However, the Judges recognise that such an application of Article 17 is extremely rare. Secondly, the Judges, while admitting that Article 17 and Article 18 have a similar scope of application, distinguish the two on the basis of the difference between an ‘abuse of power’ and a ‘misuse of power’ claiming that

“26. If misuse of power is also undoubtedly an abuse of power, the opposite is not necessarily true. There may be instances of abuse of power when the authorities in taking an individual decision do not, in fact, pursue an ulterior purpose. To use the paradigm of the theory of sets, Article 18 is a subset of Article 17. The concept of abuse of rights is broader than that of misuse of power, meaning that certain acts will be considered “abusive”, not because the purpose is unlawful, but because of the way in which the power was used.”

The Judges conclude:

“33. In light of the above, we are of the view that, if the case had been presented in those terms, an examination of the facts of the present case under Article 17 would have enabled the Court to assess whether the number of individual episodes addressed in the judgment, taken together, are evidence or isolated manifestations of a system that abusively seeks to limit, by legislative, administrative and/or judicial means, the democratic rights of the applicant in a way that substantially runs counter to the purpose and general spirit of the Convention and is aimed at unduly limiting those rights; and to do so without (a) having to adopt a narrow focus on the (administrative) authorities involved in the individual incident under consideration and (b) having to address the difficult issue of whether those authorities, in their response to each individual occasion on which the applicant sought to exercise his fundamental freedom of assembly, pursued an ulterior purpose.”

It seems that the Joint Opinion of Judges Pejchal, Dedov, Ravarani, Eicke and Paczolay by no means was designed to limit the scope of liability on the part of the Russian government, as recognised in the Majority Opinion. To the contrary. Under the approach to Article 17 and Article 18 advocated in the Joint Opinion, the liability of the Russian government for a repeated pattern of abuse of power towards Mr Navalny would probably only deepen. In any event, the Joint Opinion in this case is a rather rare example of the Court, or at least a part of it, trying to clarify confusing rules of application of Articles which are rarely relied on by applicants and therefore not sufficiently explained in the Court’s jurisprudence.

Comparisons to Nazi outside Free Speech Protection (ECtHR)

On 18 October 2018, the European Court of Human Rights ruled in the case of Annen v. Germany (No. 6) (App. No.: 3779/11) that Article 10 of the European Convention on Human Rights did not protect statements comparing doctors conducting stem-cell research to Nazi experiments. The Claimant was originally convicted before a German court for the crime of ‘insult’ contrary to Article 185 of the German Criminal Code and the case was brought before the European Court of Human Rights on the grounds that the comparison had been made in the context of a larger public debate and was therefore covered by the freedom of speech.

The Claimant argued that the conviction constituted a disproportional interference under Article 10 of the Convention. The state on the other hand argued that the conviction was necessary for the purposes of the “protection of the reputation or rights of others”, which is an allowable exception to the Article 10 rights. Ultimately, the Court held that the conviction fell within the margin of appreciation granted to Germany. It was also emphasised that “regardless of the forcefulness of political struggles, it is legitimate to try to ensure a minimum degree of moderation and propriety and that a clear distinction must be made between criticism and insult.” (para. 24).

With this case, the European Court of Human Rights maintains its limited approach to the Article 10 protection whereby, unlike under the First Amendment to the US Constitution, the freedom of speech does not cover offensive statements, even if made on a topic of public importance (e.g. Handyside v UK (App. No.: 5493/72), Otto-Preminger-Institut v Austria (App. No.: 13470/87), Vejdeland v Sweden (App. No.: 1813/07), etc.).

Payment of Widowed Allowance to Spouses Only Violates Human Rights

At the end of August 2018, the UK Supreme Court ruled In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 that the current rules for the payment of Widowed Parent’s Allowance (WPA) violated Article 8 of the European Convention on Human Rights read in conjunction with Article 14. WPA is a contributory-based social benefit offered under s39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to widowed parents with dependent children whose spouse or civil partner has died. The Court ruled that the requirement of a formal marriage or civil partnership as a precondition for receiving WPA discriminated against couples who although had children together, never formalised their relationship.

The Court was however cautious to say that not every type of social benefit requiring a formal union is necessarily incompatible with the Convention. It was held that WPA could not be dependent on the prior existence of marriage or civil partnership because it was designed to benefit children who have lost one of their parents rather than to make any form of compensation to the surviving parent him or herself. Accordingly, to condition the payment of WPA on the existence of a formal union between parents is to effectively discriminate between the so called legitimate and illegitimate children – a policy which was declared unlawful by the European Court of Human Rights in the case of Marckx v Belgium (App. no.: 6833/74), back in 1979. It is on this basis that the Lady Hale, writing for the majority, attempted to distinguish the case of Shackell v United Kingdom (App. No.: 45851/99) where the European Court of Human Rights had held inadmissible complaints that the lack of a formal marriage should not deprive the surviving widow of an analogous benefit (paras. 25-28). The attempt was nevertheless not entirely convincing and Lord Mance in his Concurring Opinion (with which Lady Hale agreed) further elaborated on this point ultimately considering the reasoning in Shackell to be simply unsatisfactory (para. 49).

This approach of the majority however prompted Lorde Hodge to claim, in his Dissenting Opinion, that the majority was departing from a settled line of case law of the European Court of Human Rights which had recently been confirmed in the case of Burden v United Kingdom (App. no.: 13378/05). Moreover, Lord Hodge pointed out that although the WPA could be construed as designed to ultimately benefit children, it was nevertheless payable directly to the surviving spouse and depended heavily on his or her circumstances so that “if she remarries or enters into a civil partnership, so long as she cohabits with a partner of either gender, or if she dies, the WPA ceases to be payable” and “the sums payable to the Survivor are not related to the children’s needs or increased by reference to the number of children for whom she is responsible.” (paras. 76-78). At the end of the day, the UK Supreme Court under the presidency of Lady Hale again took an active approach to the protection guaranteed by the European Convention on Human Rights.

The European Court of Human Rights Continues to Exercise Jurisdiction over Tax Rates

On 24 July 2018, the European Court of Human Rights found, in the case of ZG v. Hungary (App. No.: 65858/13), that the state’s ‘severance tax’ of 98% violated the applicant’s right to the peaceful enjoyment of property under Article 1 of Protocol 1 of the Convention. This case marks the tenth time this year the Court adjudicated on the same issue with the same effect. The line of cases dates back to the summer of 2013 when, in the cases of  N.K.M. v. Hungary (App. No.: 66529/11) and R.Sz. v. Hungary (App. No.: 41838/11), the Court ruled that the 98% tax on severance payments for public employees did not strike a fair balance “between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (para. 49) – a requirement which the Court read into Section 1 of Article 1. This is despite the clear wording of Section 2 of the same Article stipulating that “the preceding provisions shall not, however, in any way impair the right of a State … to secure the payment of taxes or other contributions or penalties.” This line of cases is remarkable as nowhere else has the European Court of Human Rights held a tax incompatible with the Convention solely for the reason of its rate. Although the Court was also concerned with the fact that the tax was levied on the payment which was contractually guaranteed when the employee was undertaking the employment, this could be said about any new tax, as any new tax is necessarily levied, to a certain degree, on a state of affairs which has already been initiated. Furthermore, even though the Court indicated that in different circumstances such a high tax rate might be allowed, nevertheless, it seems that the European Court of Human Rights has, with this line of cases, brought taxation rates within the ambit of the Convention rendering them fully reviewable. This move widens considerably the protection of private property under the Convention, which, as originally enacted in Protocol 1, was rather weak. If a severance tax can be held incompatible with the Convention based on its high rate, there is nothing stopping the Court from holding any other type of taxation, including an income tax, to be equally incompatible. Of course the Court remains cautious in this respect granting Member States the highest level of margin of appreciation, nevertheless, by maintaining its ‘severance tax’ jurisprudence, it sends a strong message that extraordinarily high taxes levied with no apparent justification are not beyond the Court’s jurisdiction.