Judge of the European Court of Human Rights

Krzysztof Wojtyczek

The European Convention on Human Rights (ECHR) protects the freedom of expression but at the same time permits restrictions of this freedom provided they fulfill certain criteria. It raises the question of precise criteria which determine the scope of permissible restrictions. The present paper aims at presenting briefly the case law of the European Court of Human Rights (ECtHR) concerning the limitations upon limitations (in German: Schranken-Schranken¹) of the freedom of expression.

1. First the most important limitations upon limitations of freedom of expression are sets forth in Article 10 of the Convention. This provision has to be placed, however, in the wider context of other provisions setting limitations upon limitations of rights.

   Article 7 enshrines the principle nullum crimen nulla peona sine lege and set forth limitations upon criminal law interference in the scope of all other Convention rights. The provision has two peculiarities: firstly, it pertains only to criminal law interference and, secondly, it applies also byond the scope of Convention rights, in any field where the criminal law is applied and regulates human behaviour.

   Article 16 concerns restrictions on political activity of aliens. Under this provision : Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens. Article 16 therefore clearly specifies that restrictions on political activity of aliens are permissible in principle under Article 10 par. 2 of the Convention.

   Article 17 prohibits the abuse of rights. This provision reads as follows: Nothing in this Convention may be interpreted as implying to 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 herein or at their limitation to a greater extent than is provided for in the Convention.² The provision has at least two implications of rights protection. Firstly, obviously offending speech is not covered by the protection of Article 10³, which means that interference with such speech is permissible. In such case, it is not necessary to analyze whether the different conditions have been fulfilled by the authorities. Secondly, the State is not permitted to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms or at their limitation to a greater extent than is provided for in the Convention. In other words, the limitations upon rights’ limitations set forth in the Convention are intransgressible.

   Finally, Article 18 prohibits the détournement de pouvoir.⁴ Under this provision: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

2. The German legal scholarship and case law have elaborated a three stage approach to the issue of limitations upon rights’s limitations: Schutzbereich - Eingriff - Rechtsfertigung.⁵ In the first stage, one has to determine the scope of a freedom and answer the question whether specific human activities belong to this scope. Secondly, it is necessary to verify whether certain measures undertaken by the authorities and complained of constitute an interference with the right in question. Thirdly, one has to verify whether the interference in question is justified and permissible under the applicable criteria.

   The approach adopted by the ECtHR usually follows this pattern. The scope of rights in general and of the freedom of expression is defined in very broad terms: “the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas”. According to the case law the scope of protection of Article 10 covers at least certain forms of official speech.⁶ Only exceptionally, expression will fall out of the protection scope especially if it is obviously offending persons or groups.

   The interference with rights is referred to in the text of Article 10 par. 2 by the following terms: formalities, conditions, restrictions or penalties. The interference is also understood in broad terms and in most cases its existence is not disputed. The interference may consist in a judicial decision, in an administrative decision in mere enactment of legislation restricting freedom, or in factual interference. The interference in principle comes from public bodies, yet the State has the obligation of protection against interference by individuals and private bodies.⁷ In such case the pattern Schutzbereich - Eingriff - Rechtsfertigung is not applicable, and the application of the Convention follows a different methodology.

   Article 1 par. 1 expressly permits one specific type of interference with the freedom of speech: licensing of broadcasting, television or cinema companies.

   One has to add here that what is relevant is interference which has not been remedied or adequately compensated on the domestic level. If domestic authorities violate the Convention but subsequently recognize the violation and adequately remedy it, the persons concerned can no longer claim to be a victim of a Convention rights violation.⁸

3. It is important to note that speech may easily interfere with rights of other persons or groups of persons, especially their reputation, dignity or private life. In this context, interference with the freedom of expression may be justified by the necessity to protect the rights of other persons. This may be for instance rights protected by Article 8 or Article 9 of the Convention, more exceptionally rights protected by Article 3 of the Convention. In such a case, the Convention will be applied in a situation of a conflict of two or more Convention rights. Cases involving a conflict of rights may potentially be brought before the ECtHR by different parties under different Convention provisions depending upon the outcome at the domestic level. In the context of conflicts of rights between Article 8 and 10 of the Convention the ECtHR has stressed the following: In cases which require the right to respect private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect (ibid., § 106). Accordingly, the margin of appreciation should in theory be the same in both cases.⁹

4. Under the Article 10 par. 2 of the Convention, the case law has established the following general conditions which have to be observed in order to justify an interference with the freedom of expression:

   • the requirement of a legal basis in domestic law;

   • the requirement that the interference purses a legitimate aim;

   • the requirement of proportionality;

   • the requirement to provide relevant and sufficient reasons for the interference;

   • the requirement to carry out the proportionality analysis according to the methodology established by the ECtHR’s case law;

   • the requirement to provide an adequate procedural legitimacy for the interference.

5. The interference with freedom of expression has to be prescribed by law. The case law understands the law in the substantive meaning and does not require a law adopted by the parliament. In common law countries, law may be unwritten law. Under the established case law, the interpretation of domestic law belongs to domestic courts. The ECtHR adopts the following approach in this matter:

   149. As regards the applicants’ arguments that the domestic courts in their case misapplied the relevant domestic law (see paragraph 145 above), the Court reiterates that its power to review compliance with domestic law is limited. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention “incorporates” the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Zagrebačka banka d.d. v. Croatia, no. 39544/05, § 263, 12 December 2013). This is particularly true when, as in this instance, the case turns upon difficult questions of interpretation of domestic law (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I). Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (ibid., §§ 83 and 86).¹⁰

   The role of the ECtHR in this respect is limited and the approach it often adopts in Article 10 cases may be illustrated by the following typical quote: The Court accepts that the interference was based on a reasonable interpretation of Chapter 27, Article 2, of the Penal Code, as in force at the relevant time. It was thus “prescribed by law”.¹¹

   The domestic law should nonetheless comply with the requirements of accessibility and precision. The failure to observe these requirements is quite frequent reason to find a violation of a Convention provision. The case law has established the following standards in this respect:

   124. One of the requirements resulting from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he or she must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. While certainty is desirable, it may bring excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are the questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007‑IV; Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141; and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015).

   125. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano, § 142, and Delfi AS, § 122, both cited above). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references).¹²

6. According to Article 10 par. 2 the interference has to pursue a legitimate aim. The provision in question lists the following grounds for interference: (i) the interests of national security, (ii) territorial integrity or (iii) public safety, for (iv) the prevention of disorder or crime, for (v) the protection of health or (vi) morals, for (vii) the protection of the reputation or rights of others, (viii) for preventing the disclosure of information received in confidence, or for (ix) maintaining the authority and impartiality of the judiciary.

   As the list of interests justifying the interference is very extensive and the legitimate interests are couched in very broad terms, the ECtHR will only in exceptional circumstances state that specific measures were not pursuing a permissible aim. The limitation upon limitations does not play an important role in practice.

7. Under Article 10 par. 2 of the Convention the measures interfering with freedom of expression should be necessary in a democratic society. The Court has summarized its approach to this clause in the following terms:

   124. The general principles concerning the necessity of interference with freedom of expression, reiterated many times by the Court since its judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were summarised in Stoll v. Switzerland ([GC] no. 69698/01, § 101, ECHR 2007-V) and restated more recently in Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013), as follows.

   (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fullfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which … must, however, be construed strictly, and the need for any restrictions must be established convincingly …

   (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with the European supervision, embracing both the legislation and the respective decisions, even those issued by an independent court. The Court is therefore empowered to issue the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.

   (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ … In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts …”¹³

   The case law applying this clause requires the interference to be proportionate to the aims pursued.

   In the German legal system and numerous other legal systems influenced by the German case law the principle of proportionality is understood as consisting of three sub-elements: (i) the principle of effectiveness (suitability); (ii) the principle of necessity and (iii) the principle of proportionality of the strict sense.¹⁴ The principle of effectiveness (suitability) requires that the measures taken should be able to achieve effectively the aims pursued. The principle of necessity requires that the authorities should chose the least restrictive available means in order to achieve the aims pursued. Proportionality in the strict means to that a proper balance between conflicting interests should be achieved.

   The principle of proportionality enshrines into law the general requirements of instrumental and axiological rationality.¹⁵ Interference with rights is proportionate if it complies with requirements of instrumental and axiological rationality. At the same time, the principle of proportionality may be applied with a varying rigor and intensity. In some cases, the court will disqualify only flagrantly irrational measures whereas in other cases it puts the threshold much higher.

   The ECtHR looks occasionally at issues of effectiveness (suitability) of the measures applied¹⁶ but refrains from doing this systematically. Similarly, the Court may occasionally consider the existence of less restrictive alternatives¹⁷ but refrain from formulating such a general requirement. In most cases effectiveness and necessity (understood as the requirement to resort to the least restrictive means) are left unaddressed. This may give the impression that the effectiveness and necessity of the measures under consideration are presumed or implicitly assumed. The ECtHR analysis focuses strictly on the issue of proportionality in the strict sense. The arguments pertain mainly to the interests at stake and their respective weight. In practice, the principle of proportionality as applied by the ECtHR is reduced to the requirement of proportionality.

   One has to stress in this context that in many cases involving the assessment of proportionality the crucial issue at stake is the severity of the sanction. In such cases the Court does not necessarily question the necessity of a certain sanction but the fact that the specific sanction applied to the applicant appears too severe in the circumstances of the case.

8. The case law further requires that the domestic authorities justify the interference by providing relevant and sufficient reasons. The absence of relevant or sufficient reasons is a common ground for finding a violation of the ECHR. Such an approach allows to find a violation of the Convention without taking a clear stance on the issue of proportionality as such. Failure to provide relevant or sufficient reasons does not mean that the Court would have found a restrictive measure disproportionate had it been properly justified. In numerous cases, however, it is clear that the failure to provide relevant or sufficient reasons is coupled with the disproportionate nature of the interference itself.

9. Article 10 par. 2 contains an s important guideline for the balancing of conflicting values: The exercise of these freedoms […] carries with it duties and responsibilities. Prima facie, this formula, which does not appear in other limitative clauses in the Convention, may be understood as a permission of far reaching limitations upon rights than in the case of other fundamental freedoms. The case law usually goes in this direction. One has to point here however at two elements. Firstly, the case law allows far reaching limitations upon the so-called hate speech.¹⁸ Secondly, the case law refers to the tenets of responsible journalism and principles of professional ethics as a parameters for assessing the permissibility of interference with journalistic speech. The ECtHR assess in particular whether journalists displayed the due diligence. The Court’s approach may be summarized by the following views:

   90. The Court also reiterates that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas, cited above, § 65; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I; Kasabova v. Bulgaria, no. 22385/03, §§ 61 and 63-68, 19 April 2011; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 42, ECHR 2009). In the Court’s case-law, the concept of responsible journalism has so far focused mainly on issues relating to the contents of a publication or an oral statement (see, for example, Bladet Tromsø and Stensaas, cited above, §§ 65-67; Fressoz and Roire, cited above, §§ 52-55; Krone Verlag GmbH v. Austria, no. 27306/07, §§ 46-47, 19 June 2012; Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 37, 28 March 2013; Perna v. Italy [GC], no. 48898/99, § 47, ECHR 2003‑V; Times Newspapers Ltd, cited above, § 45; Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 42, 3 December 2013; and Yordanova and Toshev v. Bulgaria, no. 5126/05, §§ 53 and 55, 2 October 2012) rather than on the public conduct of a journalist.

   However, the concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the content of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist, including, and of relevance to the instant case, his or her public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.¹⁹

10. The balancing exercise under the principle of proportionality is always carried out in the context of the specific factual circumstances of a case. These circumstances may require a far reaching individualization of the balancing exercise by taking into account either specific individual interests or specific factual elements. In other cases it may allow a far reaching generalization of the balancing exercise and moving relatively far away from the individual elements.

    In any event, the case law has established a very rich set of principles which guide the balancing of conflicting interests by identifying either relevant interests (such as open public debate) which have to be put into balance or typical factual circumstances (such as the professional status of the speaker or of the persons targeted by the speech) which are also relevant. In particular, it is necessary to analyze in particular: 1) the status of the speaker (parliamentarian, politician, judge, civil servant, journalist, participant in the public debate), 2) the nature of the speech (contributing or not to the public debate, political, artistic, commercial, private…), 3) the status of the person targeted by the speech (politician, judge, public figure, private individual, a company, vulnerable groups, ethnic minorities…) as well as 4) the nature and intensity of the interference.²⁰ For the purpose of balancing exercise, it is important in particular to take into account whether the speech interfered with is a statement of facts or a value judgment. All these elements, identified in the case law, should also be taken into account by the domestic authorities if they wish to discharge their obligation to provide sufficient and relevant reasons justifying the interference with the freedom of expression. They are important elements of the methodology of balancing but they have not been put into a system by the case law.

11. For some types of cases the ECtHR rights has established a more precise methodology structured in more systemic way which has to be followed by the domestic authorities when they assess the proportionality of the impugned measures and justify their decisions by providing reasons. One can give a few examples. Where the right to freedom of expression is being balanced against the right to respect for private life, the Court has established the following criteria:

    (α) Contribution to a debate of general interest

    (β) How well known is the person concerned and what is the subject of the report?

    (γ) Prior conduct of the person concerned

    (δ) Content, form and consequences of the publication

    (ε) Circumstances in which the photos were taken.²¹

    In assessing whether the restriction on freedom of expression was proportionate, therefore, the Court must take into account whether there was available to the applicant any other effective means of remedying the wrongdoing which he intended to uncover.

    74. In assessing whether the restriction on freedom of expression was proportionate, therefore, the Court must take into account whether any other effective means of remedying the wrongdoing was available to the applicant which he intended to uncover.

    In determining the proportionality of interference with a civil servant’s freedom of expression in such a case, the Court must also have to consider a number of other factors. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on the debate on questions of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). In a democratic system, the acts or omissions of government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the media and public opinion. The interest which the public may have in particular information can sometimes be so strong as to override even a legally imposed duty of confidence (see Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I, and Radio Twist, a.s. v. Slovakia, no. 62202/00, ECHR 2006-XV).

    75. The second factor relevant to this balancing exercise is the authenticity of the information disclosed. It is open to the competent State authorities to adopt measures intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Moreover, freedom of expression also duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see, mutatis mutandis, Morissens v. Belgium, no. 11389/85, Commission decision of 3 May 1988, DR 56, p. 127, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III).

    76. On the other side of the scales, the Court must weigh the damage, if any, suffered by the public authority as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see, mutatis mutandis, Hadjianastassiou v. Greece, 16 December 1992, § 45, Series A no. 252, and Stoll, cited above, § 130). In this connection, the subject matter of the disclosure and the nature of the administrative authority concerned may be relevant (see Haseldine, cited above).

    77. The motive behind the actions of the reporting employee is another determinant factor in deciding whether a particular disclosure should be protected or not. For instance an act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (ibid.). It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet, means of remedying the wrongdoing was available to him or her.

    78. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, attentive analysis of the penalty imposed on the applicant and its consequences is required (see Fuentes Bobo, cited above, § 49).

    In a growing number of cases, the ECtHR focuses on the assessment of the methodology applied by the domestic courts. If the national judge correctly applies the methodology recommended by the ECtHR, the latter may find that the Convention has been observed, granting a broad margin of appreciation and without trying to make its assessment of the case. A failure to implement this methodology is a sufficient basis for finding a violation of the ECHR.

12. Occasionally, the Court assesses the procedural legitimacy of the impugned measures. It may either look at the procedural legitimacy of the general legislation or individual measures.

    The approach towards the legitimacy of the general legislation may be illustrated by the following views :

    108. It emerges from that case-law that, in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it (James and Others, § 36). The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (for example, Hatton, at § 128; Murphy, at § 73; Hirst at §§ 78-80; Evans, at § 86; and Dickson, at § 83, all cited above). It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the State to assess (Pretty, § 74). A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty (Evans, § 89), of litigation, expense and delay (James and Others, § 68 and Runkee, § 39) as well as of discrimination and arbitrariness (Murphy, at §§ 76-77 and Evans, § 89). The application of the general measure to the facts of the case remains, however, illustrative of its impact in practice and is thus material to its proportionality (see, for example, James and Others, cited above, § 36). […]

    115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

    116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process. ²²

    Concerning the procedural legitimacy of individual measures, the ECtHR has expressed in particular the following views:

    133. Apart from the above factors, the fairness of proceedings and the procedural guarantees afforded are factors which in some circumstances may have to be taken into account when assessing the proportionality of an interference with freedom of expression (see Association Ekin v. France, no. 39288/98, § 61, ECHR 2001‑VIII; Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR‑2005 II; Kyprianou v. Cyprus [GC], no. 73797/01, §§ 171 and 181, ECHR‑2005 XIII; Saygılı and Seyman v. Turkey, no. 51041/99, §§ 24-25, 27 June 2006; Kudeshkina v. Russia, no. 29492/05, § 83, 26 February 2009; Lombardi Vallauri v. Italy, no. 39128/05, § 46, 20 October 2009; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 100, 14 September 2010; Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 59, 8 October 2013; and Morice v. France [GC], no. 29369/10, § 155, ECHR 2015).

    134. In Association Ekin, which concerned an administrative ban on the distribution and sale of a book of “foreign origin”, the Court held that a legal framework should ensure, inter alia, effective judicial review of such bans to prevent any abuse of power (cited above, § 58). The Court noted that the administrative courts carried out only a limited review of the reasons for such bans. In the applicant association’s case the Conseil d’Etat carried out a full review, but its practical effectiveness was undermined by the excessive length of the proceedings. The Court considered that such a deficient judicial review provided insufficient guarantees against abuse (ibid., § 61).

    135. In Lombardi Vallauri, in which the applicant’s candidacy for a lecturer in a denominational university was refused on account of his alleged heterodox views, the Court noted that in the proceedings before the Faculty Board the applicant had not been provided with adequate procedural guarantees (cited above, §§ 46-48). In the judicial-review proceedings, the administrative courts had limited their examination of the impugned decision to the fact that the Faculty Board had noted the existence of the Congregation’s refusal to approve the applicant’s candidacy. The fact that the applicant had not been given the exact reasons for that refusal ruled out any possibility of adversarial debate. Accordingly, the Court found that the judicial review had not been adequate (ibid., §§ 51 and 54).

    136. In Cumhuriyet Vakfı and Others, which concerned an injunction against a national newspaper issued in the course of civil proceedings for protection of personality rights, the Court found that the applicants had not been afforded sufficient safeguards (cited above, § 75). It had regard to (i) the exceptionally wide scope of the injunction, (ii) its excessive duration, (iii) the failure of the domestic court to give any reasoning for the interim injunction and (iv) the applicants’ inability to contest the measure before its being granted (ibid., §§ 62-74). ²³

13. In some cases, the reconciliation of conflicting principles and rights or the balancing of conflicting values goes beyond ad hoc case-specific considerations and leads to the formulation of certain rules which express the balance to be found between them. One can name a few examples here: no general obligation for the journalists to distance themselves from the remarks of another’s person²⁴ or the protection of journalistic sources²⁵.

14. In some cases, not frequently, the Court refers to the essence of certain rights.²⁶ This may remind the audience the Wesensgehaltsgarantie in the German Basic Law as an intransgressible boundary for State interference with rights.²⁷ However, one has to point here at two elements. Firstly (and rather similarly to the German legal order), the essence of rights is a vague and intuitive notion devoid of a definition.²⁸ Secondly, neither the Convention nor the case law (unlike the German basic law) have formulated a universal rule prohibiting any form of interference with the essence of rights in general or freedom of speech in particular. Thirdly, the notion appears rather in obiter dicta than in the core of the reasoning and does not play any significant role in limiting the interference with Convention rights.

15. The case law places upon the Government the burden of proof in case of imposing measures restricting freedom protected by the Convention.²⁹ Prima facie such an approach may appear as very favorable to the applicants as it is difficult to justify in a convincing way the necessity of interference with the freedom of expression, its instrumental and axiological rationality. This requirement is applied, however, with great flexibility. The Court requires to name a legitimate aim and to provide arguments justifying the interference from the viewpoint of Convention values but does require to show neither the effectiveness (suitability) of the measure adopted nor the absence of less restrictive means. Nonetheless, if the Government fails to persuade the Court that the interference was justified, the Court will find a violation of the Convention³⁰, even if there may exist objective reasons justifying the interference and even if a different pleading strategy could have been successful. The outcome of a case may therefore depend upon the quality of the pleadings.³¹ However, the approach relying upon the failure of the Government to justify the interference has also a price because it limits the erga omnes effect of such a judgment.³² The public may draw the conclusion that the substantive issue in the case remains open and that a better pleading strategy in a similar case in the future may bring a different outcome.

16. In conclusion, it is necessary to stress that the case law concerning the limitations upon limitations of rights in general and freedom of expression in particular is so rich that it appears impossible to put it into a system. In some cases, the Court tries to establish certain guidelines concerning the way the balancing exercise should be carried out. More rarely, the Court, formulates certain rules which reflect the result of the balancing exercise and express the balance between conflicting rights and principles. Exceptionally, the Court formulates a more elaborated methodology of balancing. In most cases, the Court limits itself to pick up a few guidelines from the previous case law it finds particularly relevant in the case under consideration and carries out a case-specific balancing exercise of conflicting interest and values. The Court relies typically on three main grounds to find a violation of Article 10 of the Convention: (i) insufficient quality (lack of precision) of domestic law, (ii) disproportionate nature of the interference and lack of relevant or (more frequently) (iii) lack of sufficient reasons justifying the interference. In practice, the most important limitation upon the limitations of rights is the principle of proportionality which leaves a very broad discretion to the European judge. The principle in question does not really determine any precise limits for State interference on rights but rather has the merit of structuring the discourse on rights, be it submissions put forward by the parties or the judicial argumentation.

Notes