The European Court of Human Rights, established by and solely responsible for interpreting the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), is arguably the most developed and respected international court. Its caseload has swelled in the past two decades thanks in part to its growing legitimacy and to the Council of Europe’s expansion since the fall of the Soviet Union. The Court delivered 36 judgments in the 1960s and 1970s. By comparison, it issued 1,560 judgments in 2006. The Court is increasingly seen as a legitimate influence with a vital role to play in protecting individual freedom throughout Europe.
Until 1999, the Court existed alongside the European Commission on Human Rights. The Commission reviewed cases and attempted to get the parties to the dispute to reach a friendly settlement before it referred deserving cases to the Court. A modification to the Convention – Protocol No. 11 – merged the Commission into the Court. Now the Court directly receives petitions from states and individuals who claim the Convention has been violated. Membership in the Council of Europe requires acceptance of the jurisdiction of the Court. The number of judges on the Court is set at the number of contracting states to the Convention, currently 47. Judges are elected by the Council of Europe’s Parliamentary Assembly. When hearing and deciding cases, the ordinary judicial panel is a seven-judge chamber. Judgments of chambers of the Court are final, unless a case has been referred and accepted by the Grand Chamber. Containing 17 judges, the Grand Chamber has jurisdiction to review decisions if a case raises a serious question affecting the interpretation of the Convention. Parties to a case have three months from a chamber’s decision to petition that the case be heard by the Grand Chamber. The Grand Chamber accepts relatively few cases for review. Final judgments of the Court are binding on the states that are parties to the cases.
If the Court rules that a state has violated the Convention, it can award compensation and/or costs and expenses to the injured party. The Court transmits its final judgment to the Committee of Ministers of the Council of Europe, which is responsible for supervising its execution. Although in practice the Court’s judgments appear to be followed more dutifully in some states than others, on balance a substantial majority of states respect and follow the Court’s judgments, and the Convention itself has been incorporated as domestic law in most of the Council of Europe’s states.
One basic human right recognized by the Convention is freedom of expression. Article 10 provides that “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.” That right is not absolute, however. A second section of Article 10 – Article 10(2) – enumerates justifiable limitations on expression. Among other things, Article 10(2) states that restrictions on expression may be “necessary in a democratic society” in the interests of national security, for the protection of health or morals, and for the protection of the reputation or rights of others. The Court’s Article 10 case law has thus required it to delicately balance the right to freedom of expression with the “necessary” restrictions delineated in Article 10(2).
In a sizable body of case law – several hundred cases to date – the Court has articulated strong protection for free expression. In 2006, for instance, the Court issued 19 Article 10 judgments, finding violations in 17. The Court has said exceptions to the right must be interpreted narrowly and justified convincingly. In its case law, the Court has shown appreciation for instrumental and intrinsic values of expression (Janis et al. 2000). In one of its first Article 10 cases, the Court said freedom of expression “constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man.” The Court in that case held the right to free expression applies to ideas that “offend, shock or disturb.”
The Court has especially championed the value of political debate. In a seminal 1986 case, Lingens v. Austria, the Court ruled the criminal defamation conviction of a journalist for criticizing a politician violated Article 10. The Court said freedom of political debate was “at the very core of the concept of a democratic society.” A politician, the Court said, “lays himself open to close scrutiny of his every word and deed.” The Court’s constant approach, it said in a 2006 case, is to require “very strong reasons” for justifying restrictions on speech involving political issues and political figures. In the wake of Lingens, the Court expanded protection for allegedly defamatory statements beyond political issues to include discussion of other matters of public concern, even when the plaintiff is a private person.
The Court has also stressed the importance of protecting the press from regulation and censorship. The Court has said the press fulfills an essential function in a democratic society and has a “duty to impart information and ideas on all matters of public interest.” On rare occasions, the Court has upheld injunctions against the press, but it has said such restrictions have inherent dangers and “call for the most careful scrutiny.”
In a 1996 judgment, the Court upheld a journalist’s right to refuse an order to reveal a source for his story. Because of the potential chilling effect an order of source disclosure has on press freedom, the Court said such a measure is not compatible with Article 10 “unless it is justified by an overriding requirement of public interest”. And in an important 1994 case, Jersild v. Denmark, the Court ruled that a journalist’s hate speech conviction for aiding and abetting the dissemination of racist statements violated Article 10. News reporting based on interviews, the Court said, “constitutes one of the most important means whereby the press is able to play its vital role of ‘public watchdog.’ ”
The Court’s free expression decisions have not escaped criticism. Scholars have charged, among other things, that the Court has permitted states too much deference in cases involving expression that offends morals or religion and in defamation cases concerning judges and prosecutors. In Otto-Preminger-Institut v. Austria, for instance, the Court ruled the seizure of a film that Austria claimed was an “abusive attack” on Catholicism did not violate Article 10. The Court said it was best left for Austria to determine what was required to “ensure religious peace.”
- Buergenthal, T. (2006). The evolving international human rights system. American Journal of International Law, 100, 783 – 807.
- Goldhaber, M. (2007). A people’s history of the European Court of Human Rights. New Brunswick, NJ: Rutgers University Press.
- Janis, M., Kay, R., & Bradley, A. (2000). European human rights law: Text and materials, 2nd edn. Oxford: Oxford University Press.
- Kozlowski, D. (2006). “For the protection of the reputation or rights of others”: The European Court of Human Rights’ interpretation of the defamation exception in Article 10(2). Communication Law and Policy, 11(1), 133 –178.
- Reid, K. (2004). A practitioner’s guide to the European Convention on Human Rights, 2nd edn. London: Sweet and Maxwell.