On 8 November 2016, the Grand Chamber of the European Court of Human Rights handed down a much-anticipated judgment on the right of access to information. While the Court was clearer and firmer than it had ever been before on the status of the right to access information as part of the right to freedom of expression guaranteed by Article 10 of the European Convention, it stopped short of acknowledging access to information as a fully-fledged right under the provision.

The case of Magyar Helsinki Bizottság v. Hungary concerned an information request that had been made by the Hungarian Helsinki Committee (HHC), a Budapest-based NGO that monitors and conducts advocacy on human rights. The request was addressed to a number of police stations in the country, asking that they provide the names of public defenders appointed in their area and the number of cases that had been assigned to each of them. This information was requested under Hungary’s 1992 Data Act, which contained a provision on access to information. The information was requested in the context of the HHC’s investigation into the quality of defence work done by public defenders. Two police stations refused to provide the information, and these refusals were challenged by HHC before the Hungarian courts. The Supreme Court found that, while the implementation of the constitutional right to criminal defence was a State task, the subsequent activities of the public defenders was a private activity, resulting in their names not being subject to disclosure under the Data Act. The matter was then taken to the European Court, which relinquished the matter to the Grand Chamber.

The Grand Chamber’s decision was much-anticipated as the Court had been slowly moving from an apparent outright rejection of the right to access information under Article 10 ECHR (Leander v. Sweden) to gradually acknowledging that, under certain circumstances, a limited right to access information falls within the right to freedom of expression as protected by that provision (Társaság a Szabadságjogokért v. Hungary). However, in the wake of this trajectory, the Court had left behind a legal quagmire that the Grand Chamber still had to navigate carefully in its judgment. It was hoped that the Grand Chamber would finally follow the line already taken by the Inter-American Court and the UN Human Rights Committee, and acknowledge that Article 10 comprised a self-standing right to access information. However, as much as the Grand Chamber took a significant step forward in its access to information jurisprudence, it was constrained by what had gone before.

What had gone before: a legal quagmire

There were a number of factors derived from the Court’s own case law, and the Convention itself, that had together reinforced the position that Article 10 ECHR did not provide for a standalone right of access to information held by public authorities.

1. The wording of Article 10 itself: unlike its counterparts under the International Covenant on Civil and Political Rights (Article 19) and the Universal Declaration on Human Rights (Article 19), Article 10 ECHR was not drafted to include an explicit reference to the freedom to “seek” information. As the right to access information was not explicitly apparent from the wording of Article 10, it was left for the Court to consider whether and to what extent such a right could be viewed as falling within the provision.
2. The Leander Principle: in Leander v. Sweden, the Court had held that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that “others wish or may be willing to impart to him.” The Grand Chamber recognized that the Court’s jurisprudence had extended this principle to cases where one arm of the State had recognized a right to receive information (e.g. by a court judgment) but another arm of the State had frustrated or failed to give effect to that right (see Sdruženi Jihočeské Matky v. the Czech Republic). Article 10 could, therefore, only be relied on in cases where the State prevented an individual from accessing information that another person was willing or required to disclose. It could not be relied on more generally to establish a right of access to state-held information.
3. No positive obligation on States: the Court had found that Article 10 did not confer on a State positive obligations to collect and disseminate information of its own motion (Guerra and Others v. Italy).

These factors effectively created obstacles for the Grand Chamber when considering the status of the right to access information under Article 10 ECHR, and hindered its ability to keep up with the international community on the issue.

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In March of this year, Rwanda announced that it was withdrawing from the mechanism allowing individuals and NGOs direct access to the African Court on Human and Peoples’ Rights. This raised a number of legal questions concerning the validity and effect of the intended withdrawal, especially since the African Charter and Protocol do not provide for the issue of denunciation.

The Court recently posted its ruling, confirming that Rwanda can indeed withdraw its 34(6) declaration and that a notice period of 1 year applies. While the Court’s conclusion appears sound from an international law perspective, the Court did not take the opportunity to clearly define how it determined the starting point of the notice period. In addition, the late publication of the notice period raises questions of transparency and access to justice.

The Court found that the Vienna Convention on the Law of Treaties was not applicable as the 34(6) declaration that allows for direct access to the Court is a unilateral act that can be separated from the Protocol, but also said that even if the Convention is not directly applicable, it “can be used by analogy, and the court can draw inspiration from it when it deems appropriate.” The Court further emphasised that the optional nature of the declaration and its unilateral character “stems from the international law principle of state sovereignty”, concluding that Rwanda was entitled to validly withdraw.

However, while withdrawal may be discretionary, the right to do so is not absolute, the Court continued. As Rwanda’s withdrawal affected peoples’ ability to file cases with the Court, the principle of legal certainty required that Rwanda give prior notice:

“The requirement of notice is necessary in the instant case especially as the declaration pursuant to Article 34(6) once made constitutes not only an international commitment on the part of the State, but more importantly, creates subjective rights to the benefit of individuals and groups.”

The Protocol makes it possible to realise the rights contained in the African Charter, so “the suddenness of a withdrawal without prior notice … has the potential to weaken the protection regime provided by the Charter.”

The Court established that a one-year notice applied, drawing analogy with practice at the Inter-American Court of Human Rights and the notice period provided in Article 56(2) of the Vienna Convention on the Law of Treaties. The withdrawal therefore only has effect after that period has expired, which the Court established is on 1 March 2017. Importantly, the Court also held that the withdrawal had no effect on cases that were already pending: “the Respondent’s notification of intention of withdrawal has no legal effect on cases pending before the Court.”

The Court’s reasoning and end conclusions seem fair enough. As I indicated in a previous post, the other regional courts require a notice period of 6 months (European Court of Human Rights) and a year (Inter-American Court) respectively, and the principle of non-retroactivity should mean that the withdrawal has no effect on cases pending or filed before that time.

 The Court’s ruling leaves unclear, however, what it has taken as the starting point for the 1-year notice period. A couple of dates are mentioned in the procedural history described in the ruling: the letter from Rwanda informing the Court of its intention to withdraw was dated 1 March 2016, the letter from the Office of Legal Counsel and Directorate of Legal Affairs of the African Union Commission informing the Court that it had received Rwanda’s withdrawal was dated 3 March 2016, while that same letter indicated 29 February 2016 as the date on which the withdrawal notice had been received by the Office of Legal Counsel. It would have been helpful if the Court had clarified these points in its first ruling on the matter, especially given the absence of guidance in the Protocol itself. When does the clock start ticking: when the Court has been informed or when the Office of Legal Counsel has been informed? Which is the date to go by: the date of the letter itself or the date of receipt? Basic questions that could make the difference between admissibility and inadmissibility of a human rights complaint.

Another issue is the Court’s rather peculiar procedure for publishing its findings. The original ruling was dated 3 June 2016, the corrigendum dated 5 September 2016, yet the ruling itself was published only in mid-October. Applicants from Rwanda now have just over 4 months left to file an application instead of the 9 months they would have had if the ruling been published when it was originally adopted. One wonders why the Court would allow for any delay in informing the public of this closing window of opportunity to bring alleged human rights violations committed by Rwanda to the Court’s attention. On 18 October 2016, The ACtHPR Monitor helpfully posted a “Rwexit Countdown” with the hashtag “#useitb4uloseit”. The Court itself would of course not be required to do something that explicit, but the timely publication of its ruling absolutely falls within its remit as not only a matter of proper procedure, but especially so in light of the principles of transparency and access to justice.

 

Join us on Friday 4 November, the end of International Law Week, at Columbia Law School for a panel discussion on press freedom in Africa.

Panel description

Over the past few years, the African regional and sub regional courts have handed down important decisions affecting States’ obligations to uphold press freedom and protect the right to freedom of expression. The Banjul Charter’s Article 9 codifies AU Member States’ obligations regarding free speech. The African Court on Human and Peoples’ Rights in a recent landmark decision, Lohé Issa Konaté v. Burkina Faso, held that imprisonment as a penalty for defamation was in violation of States’ obligations under Article 9. In a previous judgment the Court found that the State’s failure to properly investigate and prosecute the perpetrators in the case of the killing an investigative journalist constituted a violation of its obligations under both Article 7 (fair trial) and Article 9. In parallel, tensions grow in the intersection between cybersecurity and the exercise of the right to free expression online across the continent, and the issue of access to information has been put firmly on the map, in part due to an active campaign by the African Commission.

How can AU Member States navigate these norms and ensure they are compliant with their obligations under the African Charter on Human and Peoples’ Rights?

The panelists will focus on the following questions:

• What implications do the recent judgments on press freedom of the African Court and the sub regional courts have for States’ compliance with their obligations under the Banjul Charter?

• How can States ensure they are compliant with the Charter’s obligations while also addressing national security concerns?

• How should the new landscape of free speech online be navigated in light of existing standards and the emerging framework on cybersecurity?

• How can States put in place the proper framework to implement their obligations regarding the right to access information?

• What standards should be adhered to in guaranteeing press freedom, online and offline?

Moderator:

Christina Hioureas, Chair, United Nations Practice Group at Foley Hoag

Panelists:

Nani Jansen Reventlow, Associate Tenant at Doughty Street Chambers, Fellow at Berkman Klein Center for Internet and Society at Harvard University, lead counsel on Konaté

Mariana Mas, Policy Officer Freedom of Information & Expression at Open Society Justice Initiative

Mailyn Fidler, Fellow at the Berkman Klein Center for Internet & Society at Harvard University, expert on African cybersecurity, cybercrime laws, and Internet freedom.

Venue:

The event will take place on Friday 4 November from 1:15 – 2:45 PM at Columbia Law School, 435 W 116th Street, New York, NY 10027 in Jerome Green Hall, Room 304.

This event is co-sponsored by Columbia Global Freedom of Expression, the Columbia Law School Human Rights Institute, Foley Hoag UN Practice Group, the American Society of International Law, and the Law in Africa Student Society.

On 10 September, the African Court and UNESCO convened a seminar on “Strengthening judiciary systems and African Courts to protect the safety of journalists and end impunity” in Arusha, Tanzania. Attended by some 100 participants, the seminar was the first of a series of events leading up to the commemoration of the International Day to End Impunity for Crimes Against Journalists, which takes place on 2 November. As was highlighted by the former President of the Court, Mr Ramadhani, the event also took place in the context of the 10-year anniversary of the African Court and the African year of human rights.

The seminar consisted of three main panels, focusing on African jurisprudence and international standards, the capacity of judicial actors at the national level, and the Protocol and declaration of the Court.

The first panel, on African jurisprudence and international standards, had a very optimistic tone. Panelists provided an overview of the various treaty provisions, declarations, and resolutions protecting free speech across the continent, including the sub regional human rights systems, after which the focus fell on the relevant jurisprudence. The African Court’s decisions in the Zongo and Konaté cases were consistently referred to as having set a positive standard for the protection of journalists. Other cases that helped shape the legal framework for the protection of journalists that were discussed included the Hydara, Chief Manneh, and Saidykhan cases, decided by the ECOWAS Community Court of Justice.

When discussing the issue of enforcement, there was consensus amongst the panelists that this was mainly a political process; as was expressed by the African Court and ECOWAS judges on the panel, the matter was out of their hands once judgment had been handed down. The follow-up by Burkina Faso on Zongo had been positive, and the criminal defamation laws had been amended following Konaté (implementation of the reparations judgment is still pending), but enforcement of the ECOWAS Court’s judgments in the cases against The Gambia had been fully absent. Sanctions for non-implementation, even where available, were often not used due to a lack of political will. The role of civil society in the implementation was crucial: national human rights institutions and NGOs had to actively pursue implementation at both the national level and international level, including at fora such as the UN Human Rights Council’s UPR process and State reporting to the African Commission. Further strategies that were mentioned were “naming and shaming” and the need to create better access to the jurisprudence created by the courts on the continent.

 

The main question addressed in the second panel, which looked at the capacity of judicial actors at the national level, was how to reinforce capacity within the national judicial systems regarding freedom of expression issues. Challenges flagged focused on the lack of both knowledge and proper use of freedom of expression standards. As one of the panelists commented: “if lawyers don’t make the right freedom of expression arguments, the judges’ hands are tied”. Another problem identified was that there were only very few people who were well-versed in freedom of expression rights. This created a high-risk situation: if the few lawyers defending all the free speech cases became unavailable, there was no one to pick up the work. Training was a possible solution for this, but it was agreed that this should focus on a wide range of actors, including prosecutors and law enforcement, and that one-off trainings would not suffice.

An important point was made in that criminal defamation was not the only problem journalists faced. Sedition, false news, insult and anti-terrorism laws equally posed a threat to free speech. Moreover, civil defamation could pose a significant risk due to the high damages awarded, often without grounds, that could bankrupt an individual or a news outlet.

In the third session, panelists looked at strategies to increase the ratification of the Protocol and the number of declarations made under Article 34(6) of the African Court Protocol. After all, the African Court’s ability to protect journalists is dependent on whether or not it has jurisdiction. With 30 ratifications and 7 declarations, there was still some way to go towards universal ratification. Some of the reasons mentioned for non-universal ratification of the protocol were lack of political will, confusion on the various protocols establishing the various courts, especially the African Court of Justice and Human Rights, and a degree of negligence on the part of AU Member States. The panelists discussed the various efforts undertaken by the Court, the Commission and others to increase the number of ratifications, which had had some results, but not to the extent that universal ratification had been achieved. Some of the reasons identified for this failure was a lack of resources to undertake proper follow-up, for example for the African Court to follow up after a sensitisation visit. It was suggested that possible new strategies to increase the number of ratifications and declarations should focus on involving actors other than only States and the AU: NGOs, civil society and also other inter-governmental organisations, such as the UN and its treaty bodies.

 

Rwanda’s withdrawal of its Article 34(6) declaration was also discussed, a subject which has been discussed here, here and here. It was acknowledged that this certainly was not a positive development, but that it was difficult to assess the impact at this stage. Most notably, one of the panelists mentioned that Rwanda had indicated that it might re-deposit the declaration at a later stage.

The overall conclusion of the discussions of the day was that currently a decent tool-set to defend journalists is in place: a legal framework comprising both hard norms, such as the various treaties, and soft ones, such as the UNESCO framework, solid jurisprudence from the Court, and the eagerness of the different actors to make it work. Given the current state of play for press freedom in Africa, what now needs to be done is to figure out how these tools can be used better.

This has been cross-posted from The ACtHPR Monitor

The hearing at the African Court on Human and Peoples’ Rights in the case of Victoire Ingabire this morning unexpectedly led to the disclosure of Rwanda’s withdrawal of the instrument allowing individuals and NGOs to directly file cases against it with the Court.

Individuals and NGOs can directly file cases against countries who have made the declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Benin deposited its 34(6) declaration only last month, on 8 February, which brought the total number of States allowing for direct access to eight. However, with Rwanda’s withdrawal of the declaration, the number might now be back down to seven.

Rwanda has not yet made a formal statement as to the motives of the withdrawal, nor is it known at this stage by which means it withdrew its declaration. The situation raises a myriad of legal questions, as the African Charter nor the Protocol contain a provision on denunciation. Both the European and Inter-American human rights system provide clear guidelines on the duration of jurisdiction when a State Party withdraws from the relevant human rights instrument: the European Convention on Human Rights allows States to withdraw after six months’ notice under Article 58 and the American Convention on Human Rights requires one year’s notice under Article 78.

It appears that the Court is now faced with two critical questions: first, can Rwanda’s withdrawal of the 34(6) declaration be considered valid, and second, if so, what impact will the withdrawal have on the Court’s jurisdiction over the country? In the absence of explicit provisions on either issue in the African Charter and the Protocol, it appears the Court will need to resort to the Vienna Convention on the Law of Treaties to answer these questions.

Article 56 of the Vienna Convention prescribes that treaties that do not contain a denunciation clause are not subject to denunciation or withdrawal unless it is established that the parties intended to admit this possibility or the nature of the treaty implies a right of denunciation of withdrawal. Given that a declaration to allow for direct access needs to be actively made by States in the first place, and that Rwanda is not withdrawing from the entire treaty system as such but only limiting direct access of individuals to the Court, it would appear that withdrawal should be possible, though it will be interesting to see what requirements for its validity will be determined.

It would seem that, at the very least, Rwanda cannot remove itself from the jurisdiction of the Court regarding cases that have been filed against it while the declaration was in force (the Court’s website currently lists seven cases), and possibly for cases that have been filed up to a year after the date a withdrawal has been validly made (also in analogy with Article 56 of the Vienna Convention). It is important to note that this only concerns cases filed against Rwanda at the Court directly by individuals. As Rwanda has not withdrawn from the Protocol itself, cases against it can still be referred to the Court by the African Commission under Article 5 of the Protocol.

Whatever the outcome of these questions may be, Rwanda’s withdrawal is a disappointing development for the Court, which in the few substantive decisions it has handed down so far, has demonstrated itself as a solid human rights court, capable of handing down decisions in a relatively short timespan, especially when comparing timelines with its regional counterparts. It can only be hoped that few African Union Member States will follow Rwanda’s lead and rather take Benin as an example.

Any lawyer working in a specific field of human rights will keep an eye out for the appointment of a special mandate in their area of expertise. My field is freedom of expression; as the legal director of the Media Legal Defence Initiative, an organisation that helps journalists worldwide defend their rights, knowing who the UN Special Rapporteur on Freedom of Opinion and Expression is, is important to me. Special Rapporteurs fulfill an important role in drawing attention to the key issues in their field, and help hold governments to account for human rights violations. David Kaye was appointed to the freedom of expression post in 2014, and has shown to be an excellent successor to Frank La Rue, who fulfilled the mandate in exemplary fashion from 2008 to 2014. Besides an excellent Special Rapporteur, David Kaye is also a man. As is Frank La Rue. As have all Special Rapporteurs on freedom of expression been since the mandate was created in 1993.

In fact, of all 45 individual special mandate positions (so not including collective mandates such as Working Groups) appointed by the UN Human Rights Council, only 17 are currently occupied by women. Out of a total of 52 Special Procedures, 19 have never been held by a woman. This includes 11 that – like the Rapporteurship on Freedom of Expression – have had more than one mandate holder. For an organisation that emphasises “the equal rights of men and women“ in the preamble of its constitutive document and Universal Declaration of Human Rights, that is a disappointing state of affairs.

While distribution of special mandate posts on freedom of expression is fairly balanced worldwide with Dunja Mijatović fulfilling the mandate of Representative on Freedom of the Media at the OSCE and Pansy Tlakula as the African Union Special Rapporteur on Freedom of Expression and Access to Information, the picture that emerges on gender balance in the broader category of special mandate positions in international systems does not look great. In the Inter-American system, most rapporteurships are divided between the Commissioners who act as rapporteurs. The only exception is the Rapporteurship on Freedom of Expression that has an independent Special Rapporteur. With a total of 66 Commissioners since its establishment in 1959, amongst which only 11 women can be counted, the Inter-American Commission usually has to assign more than one mandate to women Commissioners to try to keep a balance. In the case of the Freedom of Expression rapporteurship, there have been five mandate holders since its establishment in 1998 and only one has been a woman. Overall, the African Union appears to be doing better with a total of four out of five individual mandates being occupied by women today.

The qualities of the current Special Rapporteurs notwithstanding, the lack of equal gender representation is a situation that should change: having these prominent positions taken up by mostly male candidates does not do justice to the standards of equality the organisations that created these mandates are supposed to represent. The recently launched GQUAL campaign states that “Women are underrepresented in virtually all international bodies responsible for monitoring and developing international law, human rights, and international relations, both in the United Nations and in regional organizations in the Americas, Asia, Africa, and Europe. … [I]n order to promote equality, the institutions created to protect human rights must reflect this principle in their composition and actions.” GQUAL aims to get more women nominated and elected across international bodies by changing the practices, rules, and guidelines that regulate the nomination and voting processes through which candidates are selected.

Where do we begin to make sure that, three years from now, women are equally represented in international tribunals and monitoring bodies? The GQUAL campaign starts by aiming to get States to commit to and international bodies to adopt standards guaranteeing gender parity as a consideration and a goal in appointment and election procedures. This important first step is complemented by a strategy to increase transparency: the GQUAL campaign will work with States and international organisations to make more information available on open positions and their criteria and processes for selection. Organisations will be held accountable by measuring progress (or lack thereof) towards more balanced gender representation. This will contribute to raising awareness on the issue and assist campaigners in advocating for change.

The next step, after setting up this normative framework and increasing transparency, is the setting of quota for equal gender representation. This is not yet part of the GQUAL campaign, but it is my hope this will be incorporated as its strategy develops further. While the common kneejerk reaction is that merits should decide who gets appointed to a certain position, there is abundant research-based evidence that shows that, even with completely identical qualifications, women will generally draw the short end of the straw when competing for a post with a man. This reality cannot be ignored: no matter how much we’d perhaps want to, it is very difficult for human beings to overcome their own inherent bias. However: quotas can contribute to change, even if the jury is still out on whether or not they manage to address the deeper-rooted obstacles women face in accessing positions of power and really are effective in all situations. They help change the landscape, which will eventually contribute to changing mindsets.

Many international organisations maintain a quota system when it comes to matters like regional representation. So why not set up a similar system for gender representation? Some international tribunals and bodies have developed guidelines and mechanisms to promote women’s equal representation, such as the International Criminal Court, and the European Court of Human Rights. For the election of Special Procedures, States are mandated to pay “due consideration” to gender representation. However, even these institutions have not been able to achieve gender parity or to sustain it. If you consider that the principle of equality and non-discrimination is central to most of the constitutive documents of international organisations and core human rights treaties, it is actually quite puzzling that such a quota system isn’t broadly applied already.

The next round of appointments for the UN Special Rapporteur positions is 2016. Some Rapporteurs will stay on for an additional term and hopefully continue doing the excellent job they are doing now. But when the time does come for some of them to step down, I hope an equally excellent, female, candidate will succeed them. This type of change is long overdue.