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THE “REPUTATION” OF A PUBLIC AUTHORITY: A NEW INTERPRETATION OF ARTICLE 10 OF THE ECHR BY THE EUROPEAN COURT OF HUMAN RIGHTS
In October 2008 the Administration of Volgograd Oblast sued the founder and editorial board of the Caucasian Not Internet-portal for defamation, seeking publication of a disclaimer stating that some information in an expert’s commentaries posted on the portal was false and damaging to the business reputation of the Administration. The Administration considered defamatory the expert’s statements that, in his view, the Administration “had lobbied the Volzhanin factory to win a tender” and that “the suspension of allocation of subsidies from the regional budget to the City of Volgograd had been an act of revenge for the lost tender”. The plaintiff won the case in the first-instance court and the Moscow City Court upheld the judgement on appeal. The founder of the portal, the commercial company “MEMO”, submitted a complaint to the European Court of Human Rights. The company not only asked the Court to find a violation of the right to freedom of opinion under Art. 10 of the European Convention on Human Rights, but also called on the Court to adopt the position that the phrase “the reputation and rights of others” in part 2 of Art. 10 of the Convention had to be construed narrowly, excluding a public authority from the interpretation of the term “others”, thus depriving it of legal standing for initiation of defamation proceedings. The applicant asserted that protection of the business reputation of executive bodies could not be considered a legitimate aim for restrictions imposed on media outlets, because a public authority is not engaged in market economic activity and that the interests of State executive bodies in maintaining a good reputation differ from those of natural persons or commercial legal entities competing in the marketplace. Previously the ECtHR routinely recognized the presence of this legitimate aim in similar cases and viewed them in light of the criterion of being “necessary in a democratic society”, part of its three-part test. The Court would find that national judicial bodies had failed to properly apply the balancing test and had protected State bodies’ reputation without paying due respect to the right of the mass media, as a watchdog for democracy, to present critical information about officials’ performance for public discussion. The words “lobbying” and “revenge” had earlier been found by the ECtHR to reflect value-judgements and not facts which are subject to proof. In the “MEMO” case the Court could have chosen the same track and found a violation of rights on these grounds. However, the facts of this case presented the Court with an opportunity to take a long-awaited step forward by formulating the position that there can be no legitimate aim when a public authority initiates defamation claims against critical media outlets, because a public authority, as distinct from individuals and commercial legal entities, is not covered by the word “others” in the text of Art. 10 of the Convention. Any other interpretation would create a risk of hampering media freedom by shielding executive bodies from media criticism and of having a chilling effect on media outlets. This approach, however, still allows named or easily identifiable public officials to initiate defamation cases in their personal, not official, capacity.
EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE CHAMBER JUDGMENT OF 14 JUNE 2022 IN THE CASE OF ECODEFENCE AND OTHERS V. RUSSIA (APPLICATIONS NOS. 9988/13 AND 60 OTHERS)
In its judgment in Ecodefence and Others v. Russia (applications nos. 9988/13 and 60 others) the European Court of Human Rights examined the complaints of 73 Russian non-governmental organisations and their directors about application of Russia’s law on foreign agents against them. The Court’s judgment examined the law’s terms “political activity” and “foreign funding” and concluded that their definition in the law was vague and their interpretation by executive and judicial authorities was unpredictable, thus violating the quality of law requirement. The Court criticised the creation of a separate category of “foreign agent” NGOs and subjecting them to excessive reporting requirements, noting that the Russian authorities failed to demonstrate that the general law on non-governmental organisations was inadequate for oversight of activities of NGOs receiving funding from foreign sources. The Court also denounced restrictions on NGO access to various sources of funding and the unpredictability of the size of administrative fines. According to the Court, all these measures are unnecessary in a democratic society. The European Court additionally found that Russia had violated the right of International Memorial to individual application by dissolving it despite the Court’s decision applying Rule 39 of the Rules of Court.
SLAVE OF THE PAST, TYRANT OF THE FUTURE? JUDICIAL PRECEDENT AS A FORM OF LEGAL ARGUMENTATION IN THE CASE-LAW OF INTEGRATION COURTS
Argumentation is the basis of the activity of a judicial body. The influence of a judicial act on law enforcement practice depends on the depth and persuasiveness of argumentation. Judicial reasoning is extremely important in the exercise of judicial discretion, which requires a detailed justification of the reasons for choosing one of the legal options for resolving the dispute. The reasoning is of particular importance for the courts of integration organizations, since the interpretation of legal norms carried out by them affects not only the activities of supranational institutions but also of domestic law enforcement. The practice of courts of integration organizations demonstrates the characteristics of the methods of argumentation used by them, such as an argument based on the utility of an action, an appeal to the legal positions of other international courts, and case-based argumentation. Based on an analysis of general approaches to judicial argumentation, a conclusion is formulated about the inseparable connection between argumentation, interpretation, and proof. Ways of argumentation are considered as a particular manifestation of the methods of interpretation. Using examples of the practice of the Court of Justice of the European Union, the Courts of the Andean and Caribbean Communities, and the Court of the Eurasian Economic Union, general conclusions are made about the meaning and features of the argumentation based on the practice of other international courts and on their own legal positions formulated in earlier judicial acts. Referring to the approaches of other international courts is, on the one hand, a way to enrich one’s own practice by borrowing legal structures or models of legal argumentation, and on the other hand, it is a tool to enhance the persuasiveness of adopted judicial acts. References to the practice of other international courts make it possible not only to understand the arguments in a particular case, but also to provide an opportunity to assess the position of the integration court in the broad context of other judicial bodies. Case-based reasoning helps to ensure the stability, predictability, and continuity of judicial practice. Departure from precedent requires a detailed explanation and can be expressed by reference to different factual circumstances and by more persuasive reasoning.
TERMINATION OF INTERNATIONAL TREATIES: A RIOT OF COLORS BEYOND THE VIENNA CONVENTION ON THE LAW OF TREATIES (1969)
The present article examines legal issues of termination of and withdrawal from international treaties, a topic traditionally neglected by scholars. The relevant provisions of the Vienna Convention on the Law of Treaties have been taken as a starting point of the analysis. It reveals that the drafters of the Convention, prioritizing the stability of treaties, consciously restricted the permitted grounds for treaty termination and withdrawal and conceived a lengthy and complicated procedure for these. At the same time the current state of treaty practice shows that the rules of the Vienna Convention have not been relied on and that in the vast majority of cases the treaties themselves contain specific provisions for termination and withdrawal. Being lex specialis such treaty provisions prevail in modern state practice and thus raise doubts about whether the relevant provisions of the Vienna Convention properly reflect customary international law. Statistical data on treaty terminations and withdrawals provide sufficient basis to agree with the opinion that termination and withdrawal are not just sporadic and anomalous actions of a few states but are efficient and regularly used tools for adapting treaty relations to changing foreign policy circumstances and priorities. The circumstances of some states’ withdrawals from the human right treaties as well as the European Union’s 2020 Termination agreement ending intra-EU investment agreements confirm that these actions arose from decisions of international courts, quasi-judicial bodies, and arbitration tribunals. In such cases the termination or withdrawal can be considered as the end of a dialogue between a state and an international adjudicative body and as the adjustment of that state’s initial expectations to current reality.
The article addresses the international criminal liability of businesses. It is considered in two aspects: the individual liability of businessmen acting in their personal capacity and the liability of corporate entities created by private law. The author analyzes this issue in historical terms, starting his research from the end of the Second World War and ending with the latest cases adjudicated by internationalized (hybrid) courts. He concludes that, in general, businessmen rarely appear as defendants in international criminal justice bodies and corporations almost never do. The emerging trend of limiting the prosecution of international crimes exclusively to those committed by military and political leaders to the detriment of the persecution of business representatives undoubtedly reduces the effectiveness and humanistic potential of international criminal courts and tribunals. In general, the article asserts the need for a more flexible approach to the international criminal liability of big business. In this regard, the appeal “Back to Nuremberg!”, which is advanced by some Russian legal scholars, seems promising. The article emphasizes that the international community, at the stage of preparing the Rome Statute of the International Criminal Court, narrowed the possibility of applying international criminal law to business structures by refusing to provide for the criminal responsibility of legal entities. Thus a business person can appear in the dock in the Hague only in his personal capacity. The author comes to the conclusion that despite the relatively small number of criminal cases related to the commission of international crimes by representatives of big business, these crimes are increasingly a concern of law enforcement. A kind of surrogate for bringing these businesses to legal responsibility is the imposition of personal and corporate sanctions that do not require preliminary investigation and the establishment of relevant legal facts (such as cooperation with criminal regimes), are imposed by decisions of political authorities, and are subject to challenge in national and international courts.
THE ROLE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION IN DEVELOPING STANDARDS OF PROTECTION AGAINST AGE DISCRIMINATION
Discrimination on the basis of age is not a new phenomenon, remains widespread in all areas of society, and has the potential to affect everyone’s life. Discrimination based on age is now prohibited by the European Union’s primary and secondary law. The EU age discrimination laws are interpreted by the EU Court of Justice. In the landmark 2005 Mangold case the Court of Justice held that the prohibition of discrimination based on age constitutes a general principle of EU law and should be seen as part of primary law. The question remains about how this principle is ensured in practice. The aim of this article is to present the evolution of EU anti-discrimination law in the context of efforts to oppose age discrimination and to analyze the relevant decisions of the Court of Justice. The most numerous categories of cases, those related to age discrimination and to a mandatory retirement age, were chosen for analysis. Judicial interpretations of EU legislation regarding age discrimination present an ambiguous picture. It is possible to find a number of the Court of Justice’s decisions which appear to be too flexible, giving broad discretion to Member States to assert a legitimate purpose that would justify discrimination. The Court of Justice does not always examine the necessity or appropriateness of proposed measures asserting such justifications, thus ultimately failing to provide meaningful protection against age discrimination. However, there are reasons to believe that the Court of Justice may be more demanding in the future in its analysis of the justification for national rules, since some of its case law shows that it is ready to intervene when it deems it necessary. The Court of Justice has the difficult task of keeping a balance between, on the one hand, the aim of establishing a strong and settled principle of non-discrimination based on age within a fundamental rights approach and, on the other, a concern about ageism, labor market necessities, and the traditions of the Member States.
Currently Russia is ranked first in the world in the number of unilateral sanctions imposed against it. Most of these unilateral sanctions consist of export and import bans on goods. However, such bans are often introduced together with bans on related services, such as brokering services or technical assistance. In addition, there have been separate prohibitions on different sectors such as accounting services. Fourteen World Trade Organization members have announced that they will take any actions that they each consider necessary to protect their essential security interests. These might include actions such as suspension of most-favoured-nation treatment for services provided to Russia. Such unilateral sanctions are, in most instances, not compatible with the agreements of the WTO. However, they could potentially be justified by the so-called “national security exception” clause of these agreements. In the current circumstances of an unprecedented sanctions regime imposed on the Russian Federation, the likelihood that this exception will be invoked increases significantly. This article addresses the issue of the possibility of justification by the WTO’s Dispute Settlement Body (DSB) of sanctions imposed on the Russia on trade in the services sector by this national security exception. The authors conclude that the narrow interpretation of this exception applied by DSB panels in the cases Russian Federation – Measures Concerning Traffic in Transit and Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights would be very unlikely to lead to justification of the service sector sanctions imposed on Russia. In the future, however, DSB panels might apply a broad interpretation of the security exception clause. This could lead to abuse of the national security exception so that national security becomes an exception to the liberalization of trade and that both concepts become contradictory in nature. This would be inconsistent with the essence of the multilateral trade system, which for many decades of free trade generally, and of trade in services in particular, has allowed countries to work together for their individual benefit. Free trade has made countries dependent on each other, fostering greater cooperation and understanding between them.