Tag: protection

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.).

Withdrawal of Life-sustaining Treatment outside Courts’ Compulsory Jurisdiction

On 30 July 2018, the UK Supreme Court ruled, in the case of NHS Trust v Y (by his litigation friend, the Official Solicitor) [2018] UKSC 46, that not all decisions concerning a withdrawal of life-sustaining treatment require the Courts’ approval. Unlike euthanasia or assisted dying, neither of which is legal in the United Kingdom (Suicide Act 1961,s 2), a withdrawal of life-sustaining treatment from a patient in a vegetative state is treated as an omission (as opposed to an ‘act’) conducted in the best interest of the patient and therefore does not incur any criminal liability (Airedale NHS Trust v Bland [1993] 1 All ER 821 HL). Up until now, however, any such decision was believed to require a declaration from a Court, usually the Court of Protection, that the withdrawal of treatment resulting in death would be lawful. In its opinion, the UK Supreme Court concludes now that such a procedure is only required where there is no agreement between the doctors and the family as to the withdrawal of treatment but where such an agreement has already been reached, no separate approval from any Court is needed.

In the recent years, there have been several attempts to legalise assisted dying in the United Kingdom, both through legislation and various Courts’ cases. However, in the 2014 case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38), the UK Supreme Court refused to recognise the right to assisted dying under Article 8 of the European Convention on Human Rights basing its decision on the 2002 ruling by the European Court of Human Rights in the case of Pretty v. United Kingdom (App. No.: 2346/02) and Lord Falconer’s Assisted Dying Bill was defeated in Parliament in 2015 (BBC). The decision in NHS Trust v Y does not change the status of assisted dying in the United Kingdom but it does remove most of life-death decisions from the immediate supervision of the Courts, at least where both the patient’s doctors and family members agree to withdraw the treatment. This decision should relieve the Courts from a considerable chunk of their workload in the area of medical treatment applications while at the same time reinforce the rights of family members of patients in a vegetative state by allowing them to make those critical decisions in the privacy of hospital rooms, without any state interference.

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.