Issue 44 February 2009 - Human Rights Stop Press
The House of Lords have now determined the case of Helow v Secretary of State for the Home Department [2008] UKHL 62. A judge's membership of a Jewish association whose magazine had expressed extreme views against Palestinian causes did not in itself imply that the judge shared or endorsed such views so as to require her determination of an immigration appeal by a Palestinian activist to be set aside. The House of Lords so held in dismissing an appeal by the petitioner, Fatima Helow, against the interlocutor of an Extra Division of the Inner House of the Court of Session (2007 S.C. 303) dismissing her application to set aside an interlocutor of the Lord Ordinary, Lady Cosgrove, refusing her petition for statutory review (under s.101 of the Nationality, Immigration and Asylum Act 2002) of the refusal of her asylum claim. The petitioner, a Palestinian refugee living in Lebanon, applied for asylum in the United Kingdom on the ground that, as a Palestinian activist, she was at risk from Israeli agents in Lebanon. After the Lord Ordinary had refused the petition for review, the petitioner discovered that the judge was a member of the International Association of Jewish Lawyers and Jurists, whose magazine, circulated to all members, had carried a number of articles which were highly critical of the PLO and actions by Palestinians. Lord Mance said that the petitioner had claimed that a fair-minded observer would think that the views put forward by the association represented views which the judge shared as a member or, alternatively, that she may have been influenced by those views. However, the material relied on by the petitioner was selective and there was no evidence that the judge had read any of the complained-of material. It was no doubt possible to conceive of circumstances involving words or conduct so extreme that members might be expected to become aware of them and disassociate themselves by resignation if they did not wish to be thought to approve of them, but the present material fell far short of involving such circumstances to influence them.
King v Advocate General for Scotland [2008] CSOH 166 is an ongoing case. This case involves alleged damage caused by low-flying military aircraft. The pursuer breeds and rears horses, in particular black Arab stallions. In late 2000, she purchased a property in south-west Scotland with a view to establishing stables there. It was a suitable location as it is surrounded by forest in the Doon Valley and there are forest tracks for hacking and riding lessons. In March 2001, the pursuer became aware of aircraft flying at low altitudes over the subjects. She has since discovered that the stables are located in an area where operational low flying is allowed. The pursuer estimates that there are now about thirty incidents each month. Often, low flying pairs of jet aircraft pass directly over her subjects three or four times each day. In this action, she seeks compensation for the damage which she alleges has been caused to her, her horses and to her property by the low-flying aircraft. The pursuer's claim against the defender is based upon two causes of action: (a) nuisance; and (b) infringement of art.8 and Protocol of the European Convention on Human Rights. The defender denies the claim in fact and law and stresses that low level aircraft training is important in the defence of the realm. The case was taken to debate by the defender. Although that achieved success on some technical pleading points the substance of the action is to proceed. It is believed that this is the first case of environmental damage based on the ECHR brought in Scotland. The Strasbourg Court has been busy. Bulves AD v Bulgaria (Application No.3991/03), decided on January 22, 2009, is a rare example of a taxation provision being found to be incompatible with the Convention. Usually such provisions withstand scrutiny because of the very wide margin of appreciation afforded to states in taxation matters.
"Bulves" AD is a company and it relied on art.l of Protocol No.1 and art.14 of the Convention, the applicant company complained in particular that the Bulgarian authorities had deprived it of the right to deduct the input VAT it had paid to its supplier, who had been late in complying with its own VAT reporting obligations. The applicant company also argued that VAT legislation in Bulgaria was discriminatory.
The Court, taking into account the timely and full discharge by the applicant company of its VAT reporting obligations, its inability to secure compliance by its supplier with its VAT reporting obligations and the fact that there had been no fraud in relation to the VAT system of which the applicant company had knowledge or the means to obtain such knowledge, found in particular that "Bulves" AD should not have been required to bear the full consequences of its supplier's failure to discharge its VAT reporting obligations in timely fashion, and considered that that had amounted to an excessive individual burden on the applicant company. The Court therefore held unanimously that there had been a violation of art.l of Protocol No.1 and also held that no separate examination of the complaint under art.14 was necessary.
In Orban v France (Application No.20985/05) decided on January 15, 2009, a violation of art.10 was established.
The applicant company published a book entitled "Services Speciaux Algerie 1955-1957" ("Special Services: Algeria 1955-1957") in which its author, a former member of the special services, described torture and summary executions carried out during the war in Algeria. The Paris public prosecutor summoned the authors to answer charges of publicly defending war crimes and aiding and abetting that offence. The court found the defendants guilty and imposed fines. The judgment was upheld on appeal by a judgment of April 25, 2003 in which the Paris Court of Appeal, referring to certain extracts from the book, concluded that the author's aim had been to persuade readers of the legitimacy and inevitability of the torture and summary executions carried out during the war in Algeria.
The court noted in particular that, while the author had claimed to be aware that his had been a "difficult task", to have been acting out of duty and to have had no choice in the matter, and had expressed the hope that young army officers would never have to do what he had been obliged to do for his country in Algeria, he had nonetheless not repudiated his past. The Court of Appeal also stressed that, notwithstanding their "very short 'foreword"', the publishers had not in any sense sought to distance themselves from the text, but on the contrary had glorified the author by describing him as a "living legend" and referring to his mission as "his most painful". The Court of Cassation dismissed an appeal by the applicants on points of law. The Strasbourg Court held that French law had pursued the legitimate aim of preventing disorder or crime. In relation to whether the interference was necessary in a democratic society the Court observed first of all that the authorities had had only a limited margin of appreciation, circumscribed by the interest of a democratic society in enabling the press to impart information and ideas on all matters of public interest and guaranteeing the public's right to receive them. Those principles also applied to the publication of books in so far as they concerned matters of public interest.
The Court took the view that the Court of Appeal's finding that the author's aim had been to persuade readers of the legitimacy and inevitability of the torture and summary executions carried out during the war in Algeria was not decisive for assessment of the facts at issue in relation to art.10. It regarded the book in question above all as a witness account by a former special services officer who had served in Algeria, a "central figure in the conflict" who had been directly involved in practices such as torture and summary execution in the course of his duties. The publication of a witness account of this kind unquestionably formed part of a debate on a matter of public concern which was of singular importance for the collective memory.
The account, which was lent gravitas by the rank of its author, who had become a general, supported one of the conflicting theories in the debate, defended by the author, to the effect that such practices had not only existed but had had the blessing of the French authorities. In the Court's view, the fact that the author had not taken a critical stance with regard to these horrifying practices and that, instead of expressing regret, he had claimed to have been acting in accordance with the mission entrusted to him, formed an integral part of that witness account. Accordingly, there had been no justification for the Court of Appeal's criticism of the applicants, in their capacity as publishers, for not distancing themselves from the general's account.
The Court also observed that although the author's statements had not lost their capacity to bring back memories of past suffering, the lapse of time meant that it was not appropriate to judge them with the same degree of severity that might have been justified 10 or 20 years earlier. In that connection the Court reiterated that freedom of expression within the meaning of art. 10 was applicable not only to "information" or "ideas" regarded as inoffensive or as a matter of indifference, but also to those that offended, shocked or disturbed. Accordingly, penalising a publisher for having assisted in the dissemination of a witness account written by a third party concerning events which formed part of a country's history would seriously hamper contribution to the discussion of matters of public interest and should not be envisaged without particularly good reason. The Court further reiterated that the nature and severity of the penalties imposed also had to be taken into consideration in assessing whether the interference had been proportionate. The fines imposed were high. Accordingly, the Court concluded that the reasons given by the French courts were not sufficient to persuade it that the applicants' conviction had been "necessary in a democratic society" and that there had been a violation of art.10.
In Reklos and Davourli v Greece (Application No.1234/05) decided on January 15,2009, the applicants are the parents of Anastasios Reklos, who was born on March 31, 1997 in a private clinic. Immediately after birth, the baby was placed in a sterile unit to which only medical staff had access. As part of the photography service offered to clients, two photographs of the new-born baby, viewed face on, were taken by a professional photographer. The parents objected to this intrusion into the sterile environment without their prior consent. On August 25, 1997, following the clinic's refusal to hand over the negatives of the photographs to them, the applicants brought an action for damages before the Athens Court of First Instance. The court dismissed the action as unfounded and appeals failed.
Under art.8 the Strasbourg Court reiterated that the concept of private life was a broad one which encompassed the right to identity. It stressed that a person's image revealed his or her unique characteristics and constituted one of the chief attributes of his or her personality. The Court added that effective protection of the right to control one's image presupposed, in the present circumstances, obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication. The Court observed that, since he was a minor, Anastasios' right to protection of his image had been in the hands of his parents. Their consent had not been sought at any point, not even with regard to the keeping of the negatives, to which they objected. The Court noted that the negatives could have been used at a later date against the wishes of those concerned. The Court concluded that the Greek courts had not taken sufficient steps to guarantee Anastasios' right to protection of his private life, in breach of art.8.