European Rights Watch

ECHR Strikes Down Swiss Federal Provision Due to Inherent Gender Discrimination

By: Jamie McLennan

Impunity Watch Staff Writer

STRASBOURG, France – On October 20, 2020, the European Court of Human Rights (ECHR) unanimously held in B. v. Switzerland that a federal provision from Switzerland violated Article 14 (prohibition of discrimination) and Article 8 (right to respect for privacy and family life) when the Swiss Governmental provision allocated pensions differently to widows and widowers.

The European Court of Human Rights in Strasbourg, France. Photo Courtesy of ECHR.

The applicant, B., is a Swiss national who is the father of two children. The applicant lost his wife in an accident when the children were two and four years old. The Swiss Federal Law on Old-Age and Survivors’ Insurance allowed widows and widowers to collect a pension if they were unable to work while caring for their children. However, the federal statute stated that widowers should be able to return to work when their children reached majority age and no longer needed assistance. In 2010, after the applicant’s youngest daughter turned the age of majority, the Compensation Office notified him that his pension was terminated. He lodged an appeal, which stated that the federal law violated gender equality as protected in the Swiss Constitution. The Cantonal Court dismissed his appeal and acknowledged that the federal statute purposely treated men and women differently when allocating monetary resources for the death of a spouse.

In November of 2012, the applicant filed suit with the ECHR. The suit alleged that the Swiss provision violated Articles 14 and 8, as the statute discriminated against widowed fathers, as compared to widowed mothers, with the sole responsibility of raising their children.

The Court found that the applicant’s complaint fell within the scope of protection for Articles 14 and 8. The purpose of Article 8 is to protect the privacy of matters within families. According to the Court, the applicant’s pension was to enable the surviving parent to control family matters as they pleased. Moreover, the applicant lost his pension at the age of 57 and it would be difficult to envision an older man being forced to rejoin the workforce so many years later. Correspondingly, the Court also affirmed the alleged gender discrimination because the applicant did experience unequal treatment in that his payments were terminated, whereas a widow would not have lost her pension. The Court rejected the Swiss Government’s justification for the difference in treatment on grounds of sex, as the Government argued that there were different roles and statuses between men and women when the legislation was enacted in 1948. In response, the Court reiterated that the Charter is a “living instrument,” which should be interpreted in light of present-day conditions and progressive changes in society.

The Court ordered that the Swiss Government pay the applicant 5,000 euros in respect for non-pecuniary damage and 6,380 euros in respect of costs and damages.

For further information, please see;

European Court of Human Rights- Fact Sheet- 20. Oct. 2020.

European Court of Human Rights- Forthcoming Judgements- 22. Oct. 2020.

European Court of Human Rights- Press Release- 20. Oct. 2020.

ECHR Finds Greek Journalist’s Criminal Conviction Violative of Freedom of Expression Rights

By: Christian González

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France – The European Court of Human Rights (ECHR) has made a ruling finding that the 2013 criminal conviction of Mytilene-based journalist, Efstratios Balaskas – for insulting a high school headmaster – was violative of Article 10 of the European Convention on Human Rights.

Efstratios Balaskas, the journalist criminally convicted for insulting a high school headmaster. Photo courtesy of Inforrm.org.

Mr. Balaskas is a journalist who lives and works in the Greek city of Mytilene, located on the island of Lesbos on the northeastern corner of the Aegean Sea off the coast of Turkey. He was formerly the editor-in-chief of the Lesbos-based daily newspaper, Empros. On November 17th, 2020, he wrote and published an article in Empros called “The headmaster of the 6th High School of Mytilene, B.M., attacks, through his personal blog, the ‘ultimate lie of the Polytechnic school.’” This article was a response to a blog post written by the headmaster of a local high school just two days earlier, identified only as “B.M” by the ECHR.

The blog post in question was a negative opinion piece regarding the anniversary of the Athens Polytechnic Uprising of 1973. The Uprising was a student demonstration, against the government junta, that led to the restoration of the country’s parliamentary democracy. Since then, November 17th is a national holiday in Greece. In Mr. Balaskas’ response piece, he characterizes B.M. as a “neo-Nazi” and the “theoretician of the entity ‘Golden Dawn,’” a far-right and pro-fascist political party in Greece. B.M. responded by filing a criminal complaint against Mr. Balaskas for slanderous defamation.

The Criminal Court of First Instance of Mytilene heard the case on November 27th, 2013, and ruled in favor of B.M., finding that Mr. Balaskas’ characterizations were value judgments based on false allegations. The Criminal Court rejected Mr. Balaskas’ argument that there was a legitimate interest in informing the public of B.M.’s political leanings and changed the offense from slanderous defamation (a punishable offense under the Greek Penal Code § 363) to insult (an offense under § 361), and sentenced Mr. Balaskas to a six-month prison sentence. Mr. Balaskas made an appeal to the North Aegean Misdemeanor Court of Appeal on July 11th, 2016. The Court of Appeals considered B.M.’s history of posting anti-Semitic, pro-Aryan, and pro-Golden Dawn posts, including a post where B.M. stated, “IT IS AN HONOUR TO BE CALLED A NATIONAL-SOCIALIST.” Despite holding that Mr. Balaskas’ article was a value judgment based on factual findings, the Court of Appeals upheld the lower court’s holding and reduced the sentence to three months. A further appeal was dismissed by the Greek Supreme Court, stating that the Court of Appeals’ findings were proper.

The ECHR found that Mr. Balaskas properly brought his interest as a journalist with an interest in informing the public of the national-socialist leanings of B.M., a public figure, to each of the Greek Courts. In doing so, Mr. Balaskas raised, in substance, his freedom of expression rights guaranteed under Article 10 of the European Convention on Human Rights. The ECHR stated that in circumstances such as this, national courts have to conduct a balancing test between freedom of expression rights under Article 10 and privacy protection rights under Article 8. The ECHR found that the Greek courts failed to properly consider Mr. Balaskas’ article as a whole, instead focusing solely on the characterizing descriptions of B.M. It further felt that the Greek courts did not weigh in the intent of B.M. to create controversy through his blog post and that Mr. Balaskas’ language did not rise to the level of insult as to constitute an offense under Greek law, nor were the sentences given justified.

The ECHR noted that this was one of several cases where the courts of Greece have violated Article 10 through their rulings. It awarded Mr. Balaskas 1,603.58 euros (1,907.20 USD) in pecuniary damages and 10,000 euros (11,893.36 USD) in non-pecuniary damages.

For further information, please see:

European Court of Human Rights – Balaskas v. Greece, Chamber Judgement – 5 Nov. 2020

The International Forum for Responsible Media Blog (Inforrm) – Case Law, Strasbourg: Balaskas v Greece, Conviction for insulting headmaster breached Article 10 – 8 Nov. 2020

European Court of Human Rights (Council of Europe) – European Convention on Human Rights – 4 Nov. 1950

European Court of Human Rights – Press Release: Judgement Balaskas v. Greece – journalist’s criminal conviction for critical article of local headmaster (PDF download) – 5 Nov. 2020

Hellenic Parliament – Greek Penal Code – 11 Jun. 2019

Greek Reporter – Athens Polytechnic Uprising: How Greek Students Overthrew a Coup – 17 Nov. 2019

The European Court of Human Rights Upholds Foreign Nationals Rights to Information During Deportation Proceedings

By: Hannah Gavin

Impunity Watch Staff Writer

STRASBOURG, France – On October 15, 2020, the European Court of Human Rights came to a final judgment in the case of Muhammad and Muhammad v. Romania. The court found that Romania had violated the plaintiff’s rights in concealing information pertaining to their deportation status.

Justices from the European Court of Human Rights deliver the judgment in Muhammad and Muhammed v. Romania. Photo Courtesy of PBS.

Adeel Muhammad and Ramzan Muhammad are Pakistani nationals who originally came to Romania on student visas. Both men attended university until December of 2012. At that time, the SRI provided classified documents to the prosecutor’s office who then proceeded to submit an application to the Bucharest Court of Appeals. This application requested that the men two men be deemed “undesirable in Romania”.  The prosecutor’s office claimed in the report that the classified information implied that the men were threats to national security. That evening, on December 4th, the local police summoned both Adeel and Ramzan to appear in court the following day.

At the judgment, the prosecutor’s office asked the court to rule that the men were undesirable on the grounds that they had engaged in behaviors that threatened national security. They again referred to the classified documents in their possession. The men informed the court that they had no understanding of why they had been summoned and that the initial application contained only references of legal provisions that were of no specificity to them. The Court of Appeals found both men to be undesirable for the next 15-years in Romania, meaning they were not able to be in the country for that time. The men were then set to be deported.

On Adeel and Ramzan’s initial appeal they were dismissed. The High Court of Cassation viewed the reluctance to expose the classified documents as proper. They stated that the men had “been in a position to know…the reason why they had been summoned to court in the exclusion and expulsion proceedings.” The men appealed again, stating that they were not given their right to effective counsel due to the court not releasing the details of the classified documents.

On the appeal to the European Court of Human Rights, the court sent the case to the Grand Chamber. There the Chamber attempted to determine whether or not the limitations on the information given to the men were proper and if they were necessary as a safeguard. The Chamber found that there was no law in place that clearly established the need for the court to impose non-disclosure. Additionally, the court had not explained the reasons for withholding the information that was concrete. Finally, SRI published a press-release that contained details of the classified information only one day after the judgment.

The Chamber ruled that Romania had violated Article 1 of Protocol no. 7 of the European Convention on Human Rights which allows those facing deportation to have information so that they may provide a reasonable defense. The court found that Romania must pay each of the men EUR 10,000 in damages and another EUR 1,365 for costs and expenses.

For further information, please see:

European Court of Human Rights – Grand Chamber Judgement Muhammad and Muhammad v. Romania – 15 Oct. 2020

European Court of Human Rights – Video Delivery of the Judgement Muhammad v. Muhammad v. Romania – 15 Oct. 2020

ECHR Grand Chamber Hears Case on Unlawful Detention in Belgium

By: Rebecca Buchanan

Impunity Watch Staff Writer

STRASBOURG, France – On October 21, 2020, the Grand Chamber of the European Court of Human Rights (“ECHR”) held a hearing on the case of Denis and Irvine v. Belgium, regarding the release of applicants held in compulsory confinement in Belgium for crimes no longer eligible for detainment under the Compulsory Confinement Act of May 5, 2014. The applicants alleged that their continued confinement constitutes a violation of Articles 5(1) and 5(4) of the European Convention on Human Rights: the right to liberty and security of person and the right to a quick decision on the lawfulness of detention. 

The Grand Chamber during the hearing of Denis and Irvine v. Belgium on October 21, 2020. Photo Courtesy of the ECHR.

The complaint represents an aggregation of separate claims from applicants Jimmy Denis, a Belgian national, and Derek Irvine, a British national, brought to the court on August 21, 2017. Both applicants were placed in compulsory confinement under the Social Protection Act of April 9, 1930—Denis for theft 2007, and Irvine for attempted aggravated burglary in 2001.

The Social Protection Act allows that “trial courts may order the detention of an accused who has committed a serious crime and is suffering from one of the conditions set out in section 1,” including severe mental disturbance, defects, or disorders that make an individual incapable of controlling their actions. The applicants were both evaluated and confined pursuant to these qualifications, a point which they do not argue before the court.

The Compulsory Confinement Act of May 5, 2014, which entered into force in October 2016, restricted the court’s ability to order compulsory confinement only to individuals “who ha[ve] committed a crime or serious offense that has harmed or could have harmed the physical or mental integrity of another person,” and for “whom there is a danger that he or she will commit fresh offenses…on account of his or her mental disorder.” According to the Justice Committee of the House of Representatives, the act was intended to clarify the requisite conditions for compulsory confinement to ensure that minor offenses could no longer result in continuing detainment and to isolate properly those cases for which extended confinement is just.

In accordance with the new legislation, the applicants argue that their compulsory confinement is without legal basis, as the reasons for their incarceration do not meet the updated requirements. They applied to the Belgian courts for immediate trial and release but were denied. Upon their denial, the applicants lodged their complaint with the ECHR.

In the Chamber judgment issued by the ECHR on October 8, 2019, the Court determined that the continued compulsory confinement of the applicants did not qualify as a violation of Article 5(1) or 5(4), as it had not been “arbitrary or manifestly unreasonable” under Belgian law, and “continued to be based on judicial decisions taken under the former social protection legislation.”

Following the unanimous decision of the Chamber Court, the applicants successfully requested that their case be referred to the Grand Chamber. The hearing will aid in determining the retroactive applicability of the Compulsory Confinement Act and the legislative impacts of its amended scope.  

For further information, please see:

European Court of Human Rights – Denis and Irvine v. Belgium, Chamber Judgement – 8 Oct. 2019

European Court of Human Rights – Forthcoming Hearings in October 2020 – 1 Oct. 2020

ECHR to Review Domestic and International Standards of News and Plurality

By: Jamie McLennan

Impunity Watch Staff Writer

STRASBOURG, France– On October 14, 2020, the Grand Chamber of European Court of Human Rights heard the case NIT S.R.L v. Republic of Moldova after the initial chamber relinquished jurisdiction to the Grand Chamber. According to Article 30 of the ECHR, the chamber in which the case was initially selected, may relinquish their jurisdiction if the issue before the court raised a serious question that requires interpretation of the protocol or prior resolutions by the ECHR.

The European Court of Human Rights in Strasbourg, France. Photo Courtesy of the ECHR.

The applicant party, Noile idei televizate SRL, was a private television station located in Moldova since 1996. Beginning in 2004, the station received its license to broadcast nationally and the station allegedly has a close relationship with the Communist Party of Moldova, who held power until 2009. Between 2009-2011, the television station repeatedly broadcasted news that favored the Communist Party and as a result, received multiple sanctions for breaching legislation in Moldova that imposed duties of fairness and neutrality in the news. In particular, the television station was accused of politically biased news, favoring oppositional political parties and promoting fake and biased media. After the television station was sanctioned eleven times by the audio-visual national authority, the television station’s license to operate was withdrawn and the station could no longer publicly broadcast in Moldova since 2012.

In 2013, the television station challenged the sanctions through the court system, but the action was dismissed as unsubstantiated. The Court of Appeal affirmed the decision, stating that the harsh sanctions were likely founded, given that the station refused to comply after many warnings. The television station then sought remedy through the European Court of Human Rights and the Moldovan Government was notified of the application in April of 2018.

Here, the television station believed that they had formal complaints against the Moldovan Government under Article 6 (right to a fair trial), in which the revocation of the licensure was unfairly given due to the television station’s critical attitudes of the Moldovan Government. And, the television station also complained under Article 10 (freedom of expression), in which they argued that domestic law should not be able to impose an obligation of neutrality and fairness on privately owned stations that broadcast publicly. They further alleged that this action would constitute a breach against ownership of their broadcasting network, as stated under Article 1 of Protocol No. 1 (protection of property). They asked the court to review the issues and determine the power balance between a state’s protection of plurality and private enterprises that wish to freely express political messages. The ECHR would have to delineate between domestic and international standards for news and media, determining which area of governance should hold more power. Although the court held an initial hearing on October 14th, the case is still pending judgment before the Grand Chamber.

For further information, please see:

European Court of Human Rights- Forthcoming Hearings in October 2020- 10. Jan. 2020

European Court of Human Rights- Information Note on the Court’s Case Law- Mar. 2020

European Court of Human Rights- Press Release- 3. Sept. 2020