European Court of Human Rights OKs Injunctions Against Anti-Abortion Activist

In four related Chamber Judgments issued on Sept. 20, the European Court of Human rights upheld injunctions and the award of damages in the cases that doctors brought against an anti-abortion activist for calling doctors who performed abortions aggravated murderers and comparing abortion to the Holocaust. The court issued a press release summarizing the holdings in Annen v. Germany (No. 2 to 5):

The cases concerned a series of complaints by an anti-abortion activist, Klaus Günter Annen, over civil court injunctions on various actions he had taken as part of an anti-abortion campaign. The plaintiffs in the domestic proceedings were four doctors who performed abortions.

The Court held in particular that the injunctions had interfered with Mr Annen’s freedom of expression, but had been necessary in a democratic society. When examining whether there had been a need for such interferences in the interests of the “protection of the reputation or rights of others”, namely of the doctors, the Court’s role was only to ascertain whether the domestic courts had struck a fair balance when protecting the freedom of expression guaranteed by Article 10 and the right to respect for private life protected by Article 8 of the [European] Convention [on Human Rights].

The press release contains links to the full text of each of the four decisions. [Thanks to Paul deMello Jr. for the lead.]

European Human Rights Court Can Now Issue Advisory Opinions

The European Court of Human Rights announced last week that Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (full text) has come into force after France became the tenth nation to ratify it. The Protocol allows courts in each European nation to request advisory opinions on the interpretation or application of the European Convention on Human Rights.  Requests for advisory opinions are limited to cases pending before the national court when the request is made.

European Court Affirms Jurisdiction of Ecclesiastical Courts

In Nagy v. Hungary, (ECHR, Sept. 14, 2017), the Grand Chamber of the European Court of Human Rights, by a vote of 10-7, upheld the exclusive jurisdiction of ecclesiastical courts over contractual disputes that are matters of ecclesiastical law.  In the case, a pastor in the Reformed Church of Hungary was suspended, and ultimately removed, from his position through church disciplinary proceedings because of statements he had made in a local newspaper.  He then sued in civil courts for compensation that he says he was owed for the periods prior to his termination.  When lower courts dismissed his claims, he argued that this violated his right under Article 6(1) of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal established by law in determining his civil rights.  The European Court's majority opinion held in part:

... [A]pplicant’s claim ... concerned an assertion that a pecuniary claim stemming from his ecclesiastical service, governed by ecclesiastical law, was actually to be regarded as falling under the civil law.... Given the overall legal and jurisprudential framework existing in Hungary ..., the domestic courts’ conclusion that the applicant’s pastoral service had been governed by ecclesiastical law and their decision to discontinue the proceedings cannot be deemed arbitrary or manifestly unreasonable.... [This] Court cannot but conclude that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State.

Four separate dissenting opinions were also filed. ADF issued a press release regarding the decision.

European Court Finds Bulgaria Violated Convention In Refusing To Recognize Ahmadiyya Group

In Metodiev and Others v. Bulgaria, (ECHR, June 15, 2017), (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Bulgaria had violated the European Convention on Human Rights Art. 9 (freedom of religion) in refusing to register the new Ahmadiyya Muslim Community as a denomination under Bulgaria's Religions Act.  According to the Court's press release summarizing the decision:

the sole reason given by the Supreme Court of Cassation for the refusal was the lack of a sufficiently precise and clear indication of the beliefs and rites of the Ahmadi religion in the association’s constitution. The domestic court had concluded that the constitution did not meet the statutory requirements of the Religions Act, which sought to distinguish between the various religions and to avoid confrontation between religious communities....

The Court took the view that the approach adopted by the Court of Cassation would lead in practice to refusing registration of any new religious association having the same doctrine as an existing religion. That approach could result in allowing the existence of only one religious association for each religious movement and in requiring all followers to adhere to it.

A Chamber Judgment may be appealed to the Grand Chamber.

British Appeals Court Refuses To Extend Civil Partnerships To Heterosexual Couples

In Steinfeld & Keidan v Secretary of State for Education, (EWCA, Feb. 21, 2017), Britain's Court of Appeal, in a 2-1 decision, rejected a challenge to British law that allows same-sex couples, but not opposite-sex couples, to enter civil partnerships as an alternative to marriage.  The differential treatment was challenged as a violation of the European Convention on Human Rights prohibition on discrimination (Article 14) and right to respect for private and family life (Article 8). As explained in the Court's Summary of the decision, all of the judges agreed that the ban on civil partnerships for opposite-sex couples creates a potential violation of Articles 14 and 8.  However two of the three judges concluded that the limitation is permissible because it is in pursuit of a legitimate aim and is proportionate.  The Secretary of State is taking further time to assess whether, since the introduction of same-sex marriage, civil partnership should be phased out or should instead be extended to opposite-sex couples. CNN reports on the decision.

Brexit Apparently Does Not Threaten Britain's European Human Rights Obligations

Reuters reports that in Britain, Interior Minister Theresa May will become the country's new Prime Minister tomorrow. She will be responsible for steering Britain's exit from the European Union.  She said yesterday  that there could be no second referendum and would be no attempt to rejoin the EU by the back door. According to a review by Law & Religion UK,  before the referendum May favored staying in the EU but withdrawing from the European Convention on Human Rights.  However on June 30 she said:

I’ve set my position on the ECHR out very clearly but I also recognise that this is an issue that divides people, and the reality is there will be no Parliamentary majority for pulling out of the ECHR, so that is something I’m not going to pursue.