IR_10_Law PDF - European Convention on Human Rights

The European Convention on Human Rights (ECHR) - ECHR was signed on 4 November 1950 in Rome. - Over the last fifty years ECHR has progressed both by the interpretation given to its texts by the European Court of Human Rights and the European Commission of Human Rights and by the work of the C...

The European Convention on Human Rights (ECHR) - ECHR was signed on 4 November 1950 in Rome. - Over the last fifty years ECHR has progressed both by the interpretation given to its texts by the European Court of Human Rights and the European Commission of Human Rights and by the work of the Council of Europe. - Almost all the States Party to the ECHR have integrated the Convention into their national legislation. ECHR is thus part of the internal legal system and is binding on the domestic courts and all public authorities.  ECHR – Article 1 – Respecting – Article 11 – Association Rights – Article 12 – Marriage – Article 2 - Life – Article 13 – Effective – Article 3 – Torture Remedy – Article 4 – Servitude – Article 14 – – Article 5 – Liberty and Discrimination Security – Article 15 – Derogations – Article 6 – Fair Trial – Article 16 – Aliens – Article 7 – Retrospectivity – Article 17 – Abuse of – Article 8 – Privacy Rights – Article 9 – Conscience – Article 18 – Permitted and Religion Restrictions – Article 10 – Freedom of Expression  ECHR Convention Protocols – Protocol 1 Article 1 – Property Article 2 – Education Article 3 – Elections – Protocol 4 – Civil Imprisonment, Free movement, Expulsion – Protocol 6 – Restriction of Death Penalty – Protocol 7 – Crime and Family – Protocol 12 – Discrimination – Protocol 13 – Complete Abolition of Death Penalty  ECHR – Article 10 Provides the right to freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas. ”Article 10 – Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”  Information Received In Confidence In Western liberal democracies, after Watergate, the right of journalists to have confidential sources without revealing their identity was respected by authorities After 9/11 journalists were exposed to much higher pressure to reveal their sources Still, the rule is the same: journalists have the right to have confidential sources; in other circumstances, sources might refuse to offer information to the journalists, consequently the press would be in the situation to be unable to be „the watchdog of the society”  Final Document of OSCE Conference of 1989 34 states signed the document, including USA and Romania In Article 40 the singing states stipulated: ”They will ensure that, in pursuing this activity, journalists, including those representing media from other participating States, are free to seek access and to maintain contacts with public and private sources of information and that their need for professional confidentiality is respected.”  Code of Ethics of IFJ Article 6: ”The journalist shall observe professional secrecy regarding the source of information obtained in confidence.”  Universal Declaration of Human Rights (UNO) Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.  New York Times v. Sullivan (1964) This was a US Supreme Court case that established the actual malice standard, which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person's head, such cases— when they involve public figures—rarely prevail. "actual malice" (actual knowledge of falsity, or reckless disregard for the truth)  Goodwin v. The United Kingdom European Court of Human Right – Strasbourg: ”Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedom (see, among others, the Resolution on Journalistic Freedoms and Human Rights, adopted by the 4th European Ministerial Conference on Mass Media Policy, Prague, 7-8 December 1994, and Resolution on the Confidentiality of Journalists’ Sources by the European Parliament, 18 January 1994, Official Journal of the European Communities No. C 44/34). Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.”  Goodwin v. The United Kingdom (continuation) „As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest. (...) Admittedly, if is in the first place for the national authorities to assess whether there is a »pressing social need« for the restriction and, in making their assessment, they enjoy a certain margin of appreciation.”  Goodwin v. The United Kingdom (continuation) „In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court. The Court’s task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decision they have taken pursuant to their power of appreciation. In so doing, the Court must look at the »interference« complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are »relevant and sufficient«. In sum, there was not, in the Court’s view, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim.”  Goodwin v. The United Kingdom (continuation) „The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10, for the protection of Tetra’s rights under English law, notwithstanding the margin of appreciation available to the national authorities. Accordingly, the court concludes that both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression under Article 10.”  Barb vs. Romania On October 7, 2008, the European Court for Human Rights (ECHR) decided against Romania for the violation of the right to freedom of expression in the case Barb vs. Romania. In 2000, the plaintiff, Ioan Barb, a journalist, was sentenced in a definitive decision by a court to pay a 50 lei criminal fine for insult, following his article „A Hunedoara Family Swindled 300,000,000 Lei”, with the subtitle „P. D., Chairman of the German Forum promised 700 workplaces in Germany with no legal grounds, 700 people already defrauded”, published by Capital magazine. ECHR considered that a penal sentence was an exaggerated punishment for an article that covered topics of general interest, the allegations against P. D. had a factual basis and the journalist wrote in good faith, within the acceptable limits of exaggeration and provocation. Moreover, the domestic courts failed to offer sufficient and pertinent grounds to justify the sentence. ECHR sentenced Romania to pay 19.88 Euro as material damages (the value of the criminal fine paid by the plaintiff), 1,000 Euro as moral damages and 1,781 Euro for expenses and costs of representation before the international court.  Barb vs. Romania The facts presented by the applicant were not without a sufficient factual basis, apart from the error on the number of participants in courses organized by P. D. However, this error does not in itself lead to the conclusion that the applicant acted in bad faith. Moreover, the courts have held at any time the bad faith of the applicant on this point. The Court considered that the applicant's conduct overall review demonstrates that he acted in good faith and that his words are part of the acceptable dose of exaggeration and provocation.  The Judith Miller case The most controversial case is undoubtedly that of Judith Miller, who spent 85 days in prison in 2005, but only named her source when she came forward and revealed her identity. Miller, who was a journalist for the prestigious US daily The New York Times, was jailed for refusing to reveal to a grand jury her confidential source who illegally leaked the name of a covert CIA agent. Matthew Cooper, also subpoenaed in the case, a Time magazine staffer, cracked under pressure and testified. Miller told the judge, "If journalists can't be trusted to exercise discretion, then they can't do their job, and therefore the press cannot be free." The CIA agent involved in the case, Valerie Palme, worked as a weapons of mass destruction expert for the Central Intelligence Agency (CIA). Her husband, Joseph Wilson, former U.S. Ambassador to Nigeria, denied in July 2003 in The New York Times that Iraqi President Saddam Hussein had sought to obtain uranium ore from Nigeria for his nuclear weapons program, as President George Bush claimed in a pre-war speech to justify military action against Iraq.  The Judith Miller case (continuing) Miller and Cooper went their separate ways in July 2003, when they learned from government sources that Wilson's wife was a CIA agent. However, Valerie Palme's name was not disclosed by them, but by a third journalist, Robert Novak, who was never summoned to court, even though under US law it is against the law to disclose the names of CIA agents. Novak finally voluntarily disclosed the identities of two of his sources to prosecutor Patrick J. Fitzgerald in the summer of 2006, after he discovered that the prosecutor had learned them from elsewhere. The US press, on the other hand, argued that the CIA scandal was only part of a "larger integrity problem" within the Washington administration.  Conclusions The right of expression prevails to the right to personal dignity and to the right to honor, especially in the case of public actors. In most of the countires the first is a constitutional right, while the second and the third is ”just” a legal right. Journalists can defend theirselves very effectively before the court: 1. they covered a topic of general interest; 2. their article had a factual basis; 3. their report was written in good faith. Invoquing the above mentionned three arguments, a journalist can not be convicted even if in his/her article there are also errors.