CASE OF EGELAND AND HANSEID v. NORWAY
(Applications nos. 34438/04)
16 April 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Egeland and Hanseid v. Norway,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. General background to the case
B. The impugned photographs
"The District Court has established as a fact that during the reading out of the judgment B realised that she would be found guilty, and that she suffered a physical reaction in the form of nausea. Because of this she went to the toilet, together with one of her defence counsels, Ms Y, Advokat. Thereafter she entered a side room, where she cried and was in deep despair. Shortly afterwards she was notified that she had been rearrested, to be remanded in custody. The rumour had spread, and a large number of photojournalists were waiting outside the community hall. B left the building 20-30 minutes after the judgment had been pronounced, together with defence counsel, Ms Y, accompanied by a plain-clothes police officer who walked a few metres behind them. On the way to the unmarked police car, which was parked 20-30 metres from the exit, she was photographed a number of times...”
C. The ensuing proceedings
“The District Court underlines that the main rule must still be that the taking of photographs of a convicted person on his or her way out of the court premises is prohibited, as is the publication of such images, but that the prohibition will not apply where entirely special considerations so indicate.
In the assessment of the District Court such entirely special and weighty considerations are present in this case. In this regard the District Court notes that [B] had been convicted of a horrific crime involving the triple homicide of the parents and sister of her husband. As has already been noted, this crime, the investigation and subsequent criminal trial hearing were the subject of unprecedented attention on the part of the media and the general public. A further point for the Court is that [B]'s identity had since long been revealed. Photographs of her had appeared in all the country's newspapers numerous times during the course of the investigation and in connection with the trial hearing before Nes District Court. During the period prior to the trial in the District Court, [B] had rarely consented to being photographed. Nevertheless, the press took a number of photographs of her without her knowledge. However, the situation was different during the almost eight week long trial. According to the information provided, [B] and her husband had consented to being photographed once per week during the trial. The photographs taken during these photo sessions appeared almost daily in the country's biggest newspapers and on various television channels. The issue of protection against identification through photographs was accordingly not an argument in this case. ...
A key consideration underlying the prohibition against the taking of photographs in section 131A is to protect the accused or convicted person against portrayal in situations in which their self-control is reduced. In this case [B] had been sentenced to the most severe penalty permitted under the law for the triple homicide and was in a form of shock. On the other hand, the weight of this consideration is somewhat reduced by the fact that the taking of photographs did not take place until 25-30 minutes after the end of the court hearing at which the judgment was delivered. In the meantime she had had the opportunity to compose herself in a side room to the hearing room, in the presence of her two defence counsel and members of her family.
In the assessment of the District Court it may be doubtful that these circumstances of themselves are sufficient for it to be necessary to limit the application of the prohibition with the result that publication must be considered permissible pursuant to Article 10 § 2 of the ... Convention ... . However, the court views this in the context of the fact that an arrest situation must be said to have existed at the time. [A], [B] and [C] were all arrested by the police during the minutes following the pronouncement of judgment while they were in the side rooms to the court premises in the company of their defence counsel. Two of the photographs that formed the basis for the penalty charge notices in this case depict [B] as she crosses the 20 - 30 metres between the court premises and the police car that would take her to the police station in Lillestrøm. The third photograph depicts her seated inside the unmarked police vehicle. It is clear that the issue of arrest had been discussed in a number of mass media during the days preceding the pronouncement of judgment. There was speculation about whether in the event of a conviction the police would arrest the convicted persons or whether they would remain at liberty awaiting the appeal proceedings before the High Court that most people expected would come, whatever the outcome in the District Court. As noted earlier, the various editorial boards discussed what the significance of the prohibition against the taking of photographs would be in the event of an arrest situation. This issue was also discussed amongst the photojournalists who gathered at the exit from the court premises when it became known that three of the convicted persons had been rearrested. Based on the information on the case presented before the District Court it must be assumed that reasonable doubt as to whether any photographs whatsoever would have been taken of the convicted persons on this occasion had they not been arrested.
An arrest of this nature must be regarded as a new situation in terms of fact and law. This was an event that was awaited with considerable interest by the media and the general public. Interestingly, in the wake of the arrest, there was discussion amongst centrally placed lawyers about whether it was correct to arrest the convicted persons or not. The District Court regards the arrest as a new situation and an event that the mass media could legitimately cover as a news item using both words and images. In the assessment of the District Court the arrest aspect of the situation overshadows the fact that the convicted persons were on their way out of the court premises. Aftenposten's feature on 23 June 2001 states on the front page, on which [B] is shown being escorted into the prison building, that an arrest took place immediately after judgment had been pronounced. The arrest is also described in detail in the extra edition of Dagbladet on 22 June 2001. The Court's assessment of the photographs concerned by the penalty charge notices [foreleggene] is that it is made clear to the reader that the intention of the photographs is to illuminate the situation surrounding the arrest.
As a general rule there is no prohibition against taking photographs of arrest situations. Notwithstanding the fact that the arrest in this case was undramatic involving no use of physical force on the part of the police and was carried out with the use of plain-clothes officers and unmarked police vehicles, the decisive point as regards the news aspect and the information needs of the media must be that these arrests marked a provisional end to a criminal case that had been the subject of extensive discussion. The three defendants who, prior to the trial before Nes District Court, had been at liberty for over a year were immediately arrested and subsequently remanded in custody. As a result of subsequent developments in the case, these three have not been out of prison since their arrest on 22 June 2001.
The District Court accordingly finds having assessed the circumstances as a whole, that entirely special considerations are present such that the prohibition against the taking of photographs in section 131A of the 1915 Act cannot entail criminal liability for the journalists and editors charged in this case. All five defendants will accordingly be acquitted.”
“(13) The District Court held that B had not given her consent to being photographed. On the contrary, Y made active attempts on her behalf to prevent the taking of photographs. I find in addition that the consent that the District Court gave for the pronouncement of the judgment to be transmitted live on television applied only to the reading of the judgment. It is in any event clear that the authority of the Court to grant an exemption from the prohibition against the taking of photographs in section 131A(2) of the 1915 Act applies only during the trial itself. This provision will accordingly not apply in our case.
(14) The question in this case is whether it constituted a breach of section 131A of the 1915 Act and thus a criminal offence pursuant to its section 198 (3) to publish photographs of a weeping B, distraught and dissolved in tears, leaving the court premises having been convicted of aiding and abetting in a triple homicide. If this question were to be answered in the affirmative, a further question would arise as to whether the enforcement of the prohibition would be contrary to ... Article 10 of the Convention, cf. section 3 of the Human Rights Act. ...
(15) It is the second sentence [of section 131A(1)] that is of interest in our case. ...
(16) The question is: What restrictions will follow from the phrase 'on his or her way to, or from, the hearing'. I agree with the District Court that the restrictions on the taking of photographs will apply only 'in the immediate vicinity of the court premises, i.e. normally up to the car parking area, and that the special protection that follows from section 131A will not apply after the accused has driven away from the court premises'. The District Court concluded that the provision therefore also encompassed B as she made her way out of the courtroom and into the waiting vehicle. I agree with this. I also agree with the District Court that the fact that she was under arrest at the time does not render the provision inapplicable.
(17) I must accordingly conclude that the photographs in question contravene the prohibition against the taking of photographs in section 131A .... I must therefore examine whether ... Article 10 of the Convention would nevertheless lead to a different outcome.
(18) On the subject of the general balancing of interests I refer to the discussion in Supreme Court's judgment in the Valebrokk case (2003)... . The Supreme Court held by three votes to two that the filming by TV2 of one of the convicted persons following the pronouncement of judgment in the Baneheia case did not constitute a punishable offence. The majority found, with the support of the minority, that the general rule must be that the taking of photographs in the courtroom was prohibited, including after the court had adjourned, but that this restriction would not apply 'where entirely special considerations suggest that the taking and publishing of photographs must be permitted'.
(19) The majority held that the purpose of the prohibition was to protect the 'reputation or rights' of the accused or convicted person, and that accordingly the Act pursued a legitimate aim. Although enforcement of the restrictions on the taking of photographs would generally constitute a serious interference pursuant to Article 10 § 1, it ought to be considered whether the interference nevertheless was necessary in a democratic society according to Article 10 § 2. The point of departure must be that it was generally important to protect accused and convicted persons against exposure through the taking of photographs in the courtroom, both during the hearing itself and in immediate connection with the hearings. The majority noted that most countries had prohibitions against the taking of photographs, although the scope and wording varies. By way of conclusion, paragraph 62 noted that:
'The reality of this is a general rule prohibiting the taking of photographs in the courtroom after court session has been adjourned, and a prohibition against the publication of the photographs, although the prohibition will not apply if warranted by entirely special considerations. The prosecution has argued that a rule of this nature would undermine the prohibition against the taking of photographs. It is of course true that a rule with certain limitations will be less absolute. Even so, a rule of this nature will not give the news media a 'free hand' to take and publish photographs when deemed expedient. The prohibition against the taking of photographs is supported by weighty and genuine considerations, not least in the situation immediately after the pronouncement of a judgment. Accordingly, in such a situation, strong reasons will have to be adduced for it to be accepted that it is required to photograph the convicted person and to put these pictures on display.'
(20) The view that the prohibition against the taking of photographs does not violate Article 10 would appear to be supported by the inadmissibility decision of 6 May 2003 rendered by the European Court in P4 Radio Hele Norge ASA v. Norway (dec.), no. 76682/01, ECHR 2003 VI. ...
(21) The European Court found the application to be 'manifestly ill-founded'. The Court held that the prohibition against recording and broadcasting must to some extent be viewed as an interference with the freedom of expression provided for in Article 10 § 1. Nevertheless, the Court held that there was no common ground in the legal systems of the Contracting States with regard to radio and television transmission from court proceedings. The balance between the need for openness and the need for court proceedings to be conducted without disturbance could be resolved in various ways. Moreover ... the Court held:
'Depending on the circumstances, live broadcasting of sound and pictures from a court hearing room may alter its characteristics, generate additional pressure on those involved in the trial and, even, unduly influence the manner in which they behave and hence prejudice the fair administration of justice. ...'
(22) The Court also held that the national authorities, particularly the courts, were best placed to assess whether in the individual case the broadcasting of proceedings would conflict with the 'fair administration of justice'. By way of conclusion the Court noted that on this point the Contracting States must enjoy a 'wide margin of appreciation'. Thus the general rule provided for in section 131A of the Administration of Courts Act, which applies equally to broadcasting and the taking of photographs, was not found to be problematic in relation to Article 10 of the Convention.
(23) ...It must be assumed that the margin of appreciation with regard to measures that are considered necessary with a view to securing 'fair administration of justice' is relatively broad.
(24) The opinions expressed in this decision must also have a bearing in relation to section 131A(1), second sentence, of the 1915 Act. The interests that the prohibition against the taking of photographs seeks to safeguard have been summarised in the following way in a note on the case by the Director General of Public Prosecutions:
-Protection against identification through the taking of photographs.
- Protection against portrayal in photographs in situations in which the subject's control is reduced.
- The safeguarding of one of the fundamental requirements for due process of law, namely that it should inspire trust and show consideration towards the persons involved. An accused or convicted person who has to force his or her way through press photographers and television teams may - quite apart from the issues of protection of personal integrity that arise - feel this to be a considerable additional burden.
- The need to protect the dignity and reputation of the courts. Since in general it is the courts that require the presence of the accused, which of itself may be burdensome, it is important that the courts should at the same time ensure that accused persons receive fair and considerate treatment. A failure to do so will affect not only the accused person him or herself, but also the court, which is required to ensure that the accused is treated in a considerate manner while being within and in the vicinity of the court premises.
(25) This means that in addition to privacy considerations the prohibition against the taking of photographs is supported by entirely central principles for due process. Although the need to safeguard the openness of proceedings, including satisfactory opportunities for an active and alert press, is a central consideration, this means that a balancing of interests must be conducted. The legislators conducted this balancing of interests with the introduction of section 131A of the 1915 Act, and the penal provision in section 19(3), in connection with the enactment of the Criminal Procedure Act of 22 May 1981 nr. 25. It is apparent from the legislative history that the background to this was that the existing legislation, including the Photography Act of 1960, was not found to afford the accused and convicted persons sufficient protection against being treated as 'fair game' by the press, particularly in cases of major interest to the public.
(26) I should add that the provision has not been regarded as a problem in relation to Article 10 of the Convention. Doubt on this point has mainly attached to other aspects of the new Article 390C of the Criminal Code, which was enacted with the legislative change of 4 June 1999 nr. 37, but which has not yet entered into force. This provision entails an extension of the prohibition against the taking of photographs, inter alia in relation to suspected persons in the custody of the police. Given the position of our case, I will not discuss this in further detail.
(27) Accordingly I will now move on to consider whether in our case there exist entirely special considerations, see the Valebrokk ruling, according to which the prohibition against the taking of photographs must yield to the freedom of expression. In paragraph 63 of the judgment in that case (HR-2003-00037a-A63) the majority attached weight to the fact that the case - the harrowing child killings in Baneheia - had attracted extensive public interest and that the identity of the convicted person was known. It was also noted that the photographs might reveal something significant - in a negative sense - about his personality. The decisive point, however, which was discussed in paragraph 64, was that by their nature the photographs were corrective in that they showed a different and more unaffected reaction to the judgment than had been publicly expressed by defence counsel. This was viewed as information which the public had a right to receive in such a case.
(28) Applied to our case it is clear that the Orderud case, too, was horrifying and was the subject of enormous public interest. Moreover, B's identity was already widely known when the photographs were taken. However, the photographs of B were in my view of an entirely different nature. The reaction that she displayed to the judgment - distress and sobbing - must be characterised as normal and expected in the circumstances. She was in a situation in which she had reduced control, in immediate connection with her conviction by the District Court - in other words she was within the core area of what the prohibition against the taking of photographs is intended to protect. The decisive point must therefore be whether other elements were present that would give the press the right to take the photographs and the public the right to see them.
(29) The decisive point as regards the District Court's acquittal was that the arrest - which took place directly after judgment was pronounced - was perceived as a new situation in fact and in law. According to the District Court the arrest was an event that it was legitimate for the mass media to cover, including with the aid of photographs. In my view there are no grounds for maintaining that the arrest meant that 'entirely special considerations' applied. An arrest after a conviction by a court is not entirely unusual and would not have been unexpected in a serious homicide case such as the Orderud case, in which the accused persons had been at liberty throughout the trial. Moreover, I cannot conclude that the considerations that justify the protection against the taking of photographs in and around the court premises should be any less in such a situation. As long as the photographs do not show something entirely special, for example relating to the procedures of the police during the arrest itself, the protection must in my view remain the same.
(30) [The applicants'] defence counsel has argued forcibly that the shocking offences of which B was convicted and the extensive public interest in the case, gave the media a right and a duty to inform, even if this was contrary to the interests of the convicted persons. Moreover, in today's media-based society this information would not be complete without photographs, which suggested that the scope of the prohibition against the taking of photographs should be limited. In my view the protection afforded to the convicted person pursuant to section 131A of the 1915 Act must in principle apply regardless of the nature of the case and of the media interest that the case evokes. In practice, persons who have been convicted of very serious and sensational crimes will usually not be able to avoid being identified. Nevertheless, the other considerations justifying the prohibition against the taking of photographs will be present, frequently to a greater degree than in the case of other convicted persons.
(32) I have accordingly concluded that the District Court's acquittal is not based on a correct application of the law. The case has been sufficiently elucidated for the Supreme Court to render a new judgment, cf. Section 345 second paragraph of the Criminal Procedure Act. The Defendants have not objected to this. I find that [the applicants] must be convicted in accordance with the indictment and that the sentence proposed by the prosecution, a fine of NOK 10,000, in the alternative a prison sentence of 15 days, is appropriate for both parties.
(33) I will conclude by considering the criminal injuries compensation claim.
(34) B has filed a claim for damages for non-pecuniary loss, not to exceed NOK 50,000, from each of the accused. She submits that given their convictions for breaches of sections 131A and 198(3) of the 1915 Act, the preconditions for awarding damages pursuant to section 3-6(1), last sentence, of the Damage Compensation Act will also have been met. I agree that this may frequently be the case. However, I will not consider this further since this involves a 'may' provision and I do not find that there are sufficient grounds to award economic compensation in this case.
(35) It will be clear from my comments on the question of penalty that considerations of protection of personal privacy have not been dominant in my assessment. Moreover it is clear from B's testimony that she was not even aware that the photographs had been taken. The violation lies solely in the publication of the photographs, which were not particularly conspicuous in relation to what had been published about her otherwise. This case has first and foremost revolved around the drawing of boundaries between the information work of the press and key principles of legal process. Given this situation it is my view that criminal sanctions against the editors in the form of fines will be sufficient for the purpose of emphasising that that boundary was transgressed and that there are no grounds for awarding damages.”
II. RELEVANT DOMESTIC LAW
“During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent.
If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.”
III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE
“Principle 8 - Protection of privacy in the context of on-going criminal proceedings
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
In so far as is relevant, Article 10 of the Convention reads:
“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. ...
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, ... for the protection of the reputation or rights of others, ... or for maintaining the authority and impartiality of the judiciary.”
Submissions of the parties
1. The applicants' arguments
2. The Government's arguments
B. Assessment by the Court
1. General principles
“... [T]he Contracting States must enjoy a wide margin of appreciation in regulating the freedom of the press to transmit court hearings live. The Court does not consider that a legal presumption on the national level against allowing live transmission, such as that contained in section 131A of the Administration of Courts Act, in itself raises an issue of failure to comply with Article 10 of the Convention.”
2. Application of those principles
There has therefore been no violation of Article 10 of the Convention in the present case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 16 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment :
(a) concurring opinion of Judge Rozakis;
(b) concurring opinion of Judge Malinverni.
CONCURRING OPINION OF JUDGE ROZAKIS
While I fully subscribe to the conclusion reached by the Chamber that there had been no violation in the circumstances of the present case, I am unable to agree with part of its reasoning leading to its operative findings. More particularly I contest the view of the majority that the national authorities of “the respondent State should be accorded a wide margin of appreciation in their balancing of the conflicting interests” (see paragraph 55 of the judgment); a finding which is mainly based on an admissibility decision given by a Chamber of the Court in 2003 in the case of P4 Radio Hele Norge ASA v. Norway (see paragraph 50).
The reasons for my departure from such an approach are the following:
(a) The Chamber has applied in the circumstances of the case the concept of the margin of appreciation with a degree of automaticity, as the Court has done many times in similar situations, although the facts of the case do not require – I would say “allow” – such a step to be taken. Indeed, if the concept of the margin of appreciation has any meaning whatsoever in the present-day conditions of the Court's case-law, it should only be applied in cases where, after careful consideration, it establishes that national authorities were really better placed than the Court to assess the “local” and specific conditions which existed within a particular domestic order, and, accordingly, had greater knowledge than an international court in deciding how to deal, in the most appropriate manner, with the case before them. Then, and only then, should the Court relinquish its power to examine, in depth, the facts of a case, and limit itself to a simple supervision of the national decisions, without taking the place of national authorities, but simply examining their reasonableness and the absence of arbitrariness.
(b) The facts of the present case do not lend themselves to any argument that the application of the concept of the margin of appreciation – in an automatic manner, as I said before – was an indispensable tool for the Court in order to reach its conclusions. This is a rather banal case of freedom of expression, with the specificity that it concerns the taking of pictures of a person in a vulnerable situation, while she was leaving a court house, after having been convicted for a triple murder committed together with three other co-accused. Pictures taken without her consent show her crying outside the court “while her lawyer walks next to her and makes a deprecating gesture towards the photographers” (paragraph 12). One may reasonably question what is the particular element in these facts which led the First Chamber of our Court to consider that the national authorities were better placed than the judges of our Court to balance the interests involved – namely the interest of freedom of expression against the interests of privacy – and allow the national authorities a “wide” margin of appreciation. Particularly, if one takes into account that in matters of clashes between freedom of expression (and more specifically the taking of photographs in a public place) and the right to private life, the Court has already developed jurisprudence to the effect that the balance should be tipped in favour of private life (see paragraph 59); a finding which could easily have been transposed by analogy to the circumstances of this case. Furthermore, it is my opinion that the mere absence of a wide consensus among European States concerning the taking of photographs of charged or convicted persons in connection with court proceedings does not suffice to justify the application of the margin of appreciation. This ground is only a subordinate basis for the application of the concept, if and when the Court first finds that the national authorities are better placed than the Strasbourg Court to deal effectively with the matter. If the Court so finds, the next step would be to ascertain whether the presence or absence of a common approach of European States to a matter sub judice does or does not allow the application of the concept.
(c) But the most catalytic argument against the application of the margin of appreciation in the circumstances of the case is given by the reasoning of the judgment itself. Perusal of the text clearly shows that the Chamber did not confine itself simply to a review of the reasonableness and non-arbitrariness of the national decisions in the case. By examining whether the reasons for the necessity test were not only relevant but also sufficient, it proceeded in reality with an in-depth analysis of the circumstances of the case. Paragraphs 61 et seq. speak eloquently for themselves. In paragraphs 61 and 62 the Court clearly undertakes the task of reassessing the facts to balance the interests involved, in a way which indicates its autonomous task to examine them afresh. In paragraph 63 it even disagrees with the national Supreme Court, by attaching greater importance to the applicant's privacy than the national court did, in relation to the safeguards of due process. One can really wonder, when reading this part of the judgment, what is really left to the margin of appreciation invoked by the Court, and how different its judgment would have been if no reference to the concept had been made.
(d) Lastly, it should be underlined that the respondent State's Government themselves do not dispute, in their observations, the powers of the Court “to make its own interpretation of the pictures in the context in which they had been published”; although admittedly they also point out that “knowledge of national conditions was an important element in assessing the degree of public interest in a given subject”, a matter which leads the Government to the conclusion that the national Supreme Court was better placed than the Court to assess the issues of the case. Yet, despite these reservations concerning the limits of the Court's interference in the case, it is interesting to note the acknowledgment by the respondent State of the Court's autonomous power to reassess de novo the material before it.
In conclusion, I respectfully submit that in cases like the present case the Court should carefully reconsider the applicability of the concept of the margin of appreciation, avoid the automaticity of reference to it, and duly limit it to cases where a real need for its applicability better serves the interests of justice and the protection of human rights.
CONCURRING OPINION OF JUDGE MALINVERNI
I agree with my colleagues that there has not been a violation of Article 10 of the Convention in this case. I cannot agree, however, with their reasoning.
Basing its reasoning on a similar case, namely P4 Radio Hele Norge ASA v. Norway ((dec.) no. 76682/01, ECHR 2003-VI), in which the Court had asserted that “the Contracting States must enjoy a wide margin of appreciation in regulating the freedom of the press to transmit court hearings live” (§ 51), the Court states that “the rationale for according States a wide margin of appreciation in the former case is applicable to the present instance”1 (see paragraph 52 of the judgment). The Court concludes from this that “the competent authorities in the respondent State should be accorded a wide margin of appreciation in their balancing of the conflicting interests” 2 (paragraph 55 of the judgment).
It is the adjective “wide” that I cannot accept, and thus my disagreement with my colleagues is centred on the scale of the margin of appreciation. An argument built upon a single case is not enough to convince me.
Legal writers have made several criticisms with regard to the relatively fluctuating and imprecise nature of the criteria by which the Court decides to accord States a more or less wide margin of appreciation.3 It is therefore essential that the case-law establish clear, objective and specific criteria that make it possible to identify in which cases it is appropriate to accord States a wide margin of appreciation or, on the contrary, to limit it. In other words, we need criteria that make it possible to determine in which scenarios the Court must show judicial self-restraint and in which it may exercise more extensive European supervision, typical of the “judicial activism” approach.
An examination of the case-law indicates a number of trends. First of all, the Court recognises that the States have a wide margin of appreciation where they must adopt the necessary measures in the event of a public emergency threatening the life of the nation, within the meaning of Article 15 of the Convention.1
Apart from this particular case, the Court generally recognises that States have a wide margin of appreciation in fields in which there is no common ground between the legal systems of the Contracting States.2 Thus, the lack of a uniform conception of the significance of religion3, or the absence of common principles with regard to adoption by homosexuals4 enabled the Court to grant the States substantial discretion.
On the other hand, in the well-known judgment Sunday Times v. the United Kingdom (No. 1), a more extensive European supervision was considered acceptable with regard to restrictive measures justified by the need to guarantee the authority and impartiality of the judiciary. The Court found that in this area the domestic law and practice of the States revealed a fairly substantial measure of common ground and that the latter's margin of appreciation was necessarily more limited.
We may therefore conclude that, although the States' margin of appreciation will vary according to the circumstances, the subject matter and the background, a determining factor is the existence or non-existence of common ground between the legal systems of the Contracting States.
Another criteria enabling the Court to extend or, on the contrary, to limit the scope of the margin of appreciation is the nature of the Convention right in issue and its importance.5
Firstly, the Court's scrutiny is all the stricter and the State's margin of appreciation all the more limited where the interference concerns a right which touches on the individual's private sphere, such as the right to have homosexual relationships6, the parental right of access7, or the right to confidentiality of personal medical data.8
Further, we find that the Court's supervision increases, to the extent of limiting the States' margin of appreciation to its simplest form, where a case directly concerns the essential values of democratic society. This observation is valid with regard to freedom of the press1, but also in respect of freedom of association2 and, in general, of all the freedoms protected in Articles 9 to 11 of the Convention.3
In the Court's case-law, the criterion of the importance of the right in issue, and especially of its relationship with the values that should prevail in a democratic society, is thus equally as important as the existence of common ground between the member States' legal systems.
If we consider these two criteria – the existence of a European consensus and the importance of the right in issue – it follows that, in the instant case, the Court ought to have accorded the Norwegian authorities a limited margin of appreciation.
With regard to the first criterion, there is in fact little unanimity within the member States of the Council of Europe concerning the prohibition on taking photographs of individuals who have been charged or convicted. By the Court's own admission, only four States have imposed a prohibition: in addition to Norway, these are Denmark, Cyprus and the United Kingdom (England and Wales) (see paragraph 54 of the judgment).
As to the second criterion, the freedom in issue here is the freedom of the press, which plays an essential role in a democratic society, as the Court itself acknowledges (see paragraph 49).
Contrary to what one might think, the fact of allowing only a limited margin of appreciation does not necessarily lead to a finding that there has been a violation of the Convention. It is enough that the interference found does not exceed this margin.
1 Italics added.
2 Italics added.
3 W.J. Ganshof van der Meersch, “Le caractère autonome des termes et la marge nationale des gouvernements dans l’interprétation de la Convention européenne des droits de l’homme”, in Mélanges G. Wiarda, Köln, 1990, p. 17; R. St. MacDonald, “The margin of appreciation”, in R. St. MacDonald, F. Matscher and H. Petzold, The European System for the Protection of Human Rights, Dordrecht, 1993, p. 93; P. Lambert, “Marge nationale d’appréciation et contrôle de proportionnalité”, in F. Sudre, L’interprétation de la Convention européenne des droits de l’homme, Brussels, 1998, p. 64; J. Callewaert, “Quel avenir pour le marge d’appréciation?” in Mélanges R. Ryssdal, Köln, 2000, pp. 147-166.
1 See the judgment in Ireland v. the United Kingdom, 18 January 1978, Series A no. 25 § 207.
2 See, for example, the judgment in Rasmussen v. Denmark, 28 November 1984, Series A no. 87, § 41; Handyside v. the United Kingdom, 7 December 1976, Series A no. 24, § 48.
3 See the judgment in Otto Preminger Institut v. Austria, 20 September 1994, Series A no. 295-A, § 50.
4 See the judgment in Fretté v. France, 26 February 2002, Reports 2002-I, § 59.
5 See, for example, the judgment in Buckley v. the United Kingdom, 25 September 1996, Rec. 1996-VI, § 74, or Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, Rec. 1997-I, § 42.
6 See the judgment in Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45.
7 See the judgment in B. and Others v. the United Kingdom, 8 July 1987, Series A, no. 21.
8 See the judgment in Z. v. Finland, 25 February 1997, Reports 1997-II.
1 See the judgment in Sunday Times v. the United Kingdom (No. 1), 26 April 1979, Series A, no. 30, §§ 65 et seq.; and Castells v. Spain, 23 April 1992, Series A, no. 236, § 43.
2 See the judgment in United Communist Party of Turkey v. Turkey, 30 January 1998, Reports 1998-I.
3 See the judgments in Fressoz and Roire v. France [GC], § 45, 1999-I, and Bladet Tromsø and Stensaas v. Norway, Reports 1999-III, § 59.