Excessive Formalism: The Sequel

Following yesterday's post on (excessive) formalism in the Van der Heijden case, there's another case from April that suffers from the same curiosity. In Boulois v. Luxembourg, the applicant was slapped down in his attempt to get the Court to recognise his right of access to court on the grounds that the right he was trying to assert was not a "right", but a "privilege". Unlike yesterday's art. 8 case, however, this one was based on art. 6, making the whole approach much more iffy.

In my April column on Good Intentions, which I mentioned yesterday as well, I had no difficulty explaining what was going on here without expending too many words. The Court made up the right of access to court out of whole cloth, and apparently the Grand Chamber thought it was time to cut it back to size a little.

After all, look at the text of art. 6 ECHR:

Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Note that in no way does the literal text of the Convention guarantee that if you want to sue someone, you will be able to do so. That part, the court more or less made up. Now obviously, I agree that this is an entirely reasonable way to read the article, but it does mean that the scope of said right is not as clearly defined as it could have been, hence this "rights" vs. "privileges" SNAFU. As yesterday, the question is whether such pragmatism in the use of formalism is a justifiable.

It should be clear that art. 6 is much more precise and detailed than art. 8, meaning that there is much less need for the Court to take politics into account so as to avoid excessive enthusiasm. Even the right to have access to a court in the first place is fairly well defined. In such circumstances, the Court should play its normal judicial role. That means first and foremost that it should only rarely deviate from existing case law. New exceptions and loopholes should not be invented unless there is a very strong reason for doing so. The law should be predictable for all those that are subject to it. No surprises, please.

And this is exactly why the Boulois judgement is flawed. The problem isn't, as the author on Strasbourg Observers put it, that it is "tainted by legal formalism and fails to do justice to the importance of social reintegration prospects for prisoners". Formalism isn't bad per sé, on the contrary, it's what makes judges different from politicians. And as for the importance of social reintegration prospects for prisoners, please, cry me a river. Why don't we let the legislature take point on that one. So no, it's none of that. (The author also suggests that the Court was inconsistent on the facts, which would be problematic to the extent that it is true, but Zzzzzzzz.)

No, the problem is that this judgement is too much of a surprise. The Grand Chamber of the European Court of Human Rights should not be in the surprises business, especially when it comes to an area of the law that it has been developing for almost 40 years. It should be promoting a slow, steady, gradual development of the law. Instead, we have a case where there is no suggestion that the Chamber applied the law correctly; the Grand Chamber simply decided to go another way. That is not what judges should be doing, that is the method of politicians.

Circumcision (2)

Things got a little awkward in the comments section of my earlier circumcision post today, because commenter Jade pointed out a rather glaring, embarrassing and altogether unforgivable shortcoming in my argument. The problem doesn't concern the ruling of the court in Cologne, but rather the constitutionality of a law that would potentially undo this judgement, as proposed by Mrs. Merkel. (Prof. Hans Michael Heinig suggested an actual text on the Verfassungsblog here.)

Specifically, she reminded me that art. 2(2) GG, which recognises the right to physical integrity, explicitly recognises that interference with this right is possible, as long as it is done pursuant to a law. Given that her comments also served as a powerful reminder of the fact that I am in no way an expert on German constitutional law, I am going to limit myself to making a moral/philosophical point instead:

It should certainly be possible to make vaccinations and blood-alcohol tests mandatory. However, I don't think the legislature should be able to authorise a horizontal interference with the right to physical integrity as well. If someone needs to be lawfully "assaulted", this should be done by agents of the state, not by one citizen to another. (As an analogy, and nothing more, I would offer the rule of art. 33(4) GG: some things cannot be privatised.) In that sense, I think authorising persons of category X to harm the body of persons of category Y in a given way assuming circumstances A, B and C is one step further than authorising the police to take someone's blood against their will in certain circumstances. Then again, maybe the problem is simply that I can't think of any good examples. (All examples that come to mind of one person doing something to the body of another involve the consent of the latter, which by assumption does not apply here.) If anyone can think of an example of the legislature authorising otherwise right-violating behaviour of one private person to another, especially to the body or liberty of the latter, please let me know in the comments.

Now let's stick with this assumption of the absence of consent for a moment. The reason why I assumed that just now is that the parents' consent, which usually suffices, is deemed to be insufficient here. As someone pointed out somewhere recently (since I'm travelling, I have no idea where I saw this argument, and as a result no link), one way of phrasing why this is the case is that parental consent is sufficient only when it is plausibly in the best interest of the child. ("Plausibly" because it is a good rule, codified in art. 6(2) GG, that tie-breakers go to the parents. In dubio pro reo, etc.) So all we need to refute the argument I laid out last week, as well as the argument of the court in Cologne, is a sufficiently broad reading of the term "best interest of the child", i.e. a reading that includes not only the child's medical interests, but also their socio-cultural interest. (Let's, please, avoid the argument that circumcision is in the best interest of the child because it will help him avoid going to hell. And yes, I know that in Judaism the concept of hell is a tricky one, to say the least.) What is circumcision is necessary in order for the child to find full acceptance in his community, to be properly raised in his culture, etc.

The first most obvious problem with this approach is that all of this is true for female genital mutilation (FGM) as well. So unless one wants to enact a law that explicitly discriminates against men (or against women, depending on your point of view), that is the end of that already. But maybe the problem is simply that I don't get the full substance of the argument here. After all, I am sufficiently autistic that I don't get the logic of most of the guest posts by religion & law professors on the Verfassungsblog on this topic either. (Cf. this post by Paz in English, and German-language posts by Heinig, by Neureither and by Steinbeis himself.) For example, when Neureither writes this:

Nach nicht gänzlich unbestrittener, doch nahezu einhelliger Auslegung wird [aus 1 Mose 17, 9–14] das zwingende Gebot abgeleitet, männliche Nachkommen am achten Tag ihres Lebens zu beschneiden. Durch das Urteil des LG Köln wird nun die Ausübung eines schlechthin konstituierenden religiösen Gebots für eine gesamte Religionsgemeinschaft ausgeschlossen. Den Blick nicht auf diese Auswirkungen gerichtet zu haben, macht die Entscheidung des LG unangemessen und damit verfassungswidrig.

I can read it only as an argument that relies on a collective rights theory, specifically the right of the Jewish and Muslim communities to exist, to be Jewish and Muslim in a manner consistent with their understanding of scripture, etc. Much as I sympathise with this view - I really do - the mode of reasoning simply cannot be transferred to an individual rights based system of government, and that sinks it as far as I'm concerned. What can I say, I spend a lot of time with (fellow) economists and with engineers.

There is a different way to approach this possibility, though. We can wonder whether art. 2(2) GG generally allows for the notion of parental consent for reasons other than the medical (i.e. physical and psychological) well-being of the child. There is no question that the laws contemplated in the final sentence can be for any legitimate purpose whatever, as long as proportionality is observed. Likewise, there is no question that consent is not normally questioned, unless of course the person does sufficient harm to themselves to warrant institutionalisation. However, that last point makes it at least plausible that parental consent, which one might like to question at least occasionally, should be linked to the physical integrity of the subject as well. After all, that is what we're talking about here: an application of art. 6(2) GG to the circumstances contemplated in art. 2(2) GG.

However, on reflection I don't think this is a reasonable interpretation. The language of art. 6(2) GG is simply too broad for this, and in general - outside the specific context of German constitutional law - I also think it is a needlessly restrictive approach. Parents should have more freedom than that.

Which brings me to a final question. What about parents who have their daughters' ears pierced? When the child is old enough to ask to have their ears pierced, there wouldn't be a problem. The court in Cologne expressly contemplated circumcision at a later age, when the child would be able to consent at least to a limited degree. Something similar goes for piercing the ears of an 8- or 10-year old. But there are parents who have the ears pierced of children who are much younger than that. Is that now illegal too? Or is it OK because the ears can grow shut again? Or can it be saved through some kind of de minimis reasoning?

The Human Right to Common-Law Marriage

In April, I wrote a little rant about that month's CJEU and ECtHR case law. (Favour for a tweep, the - Dutch - text is here.) One of the cases that I broadsided was Van der Heijden v. the Netherlands, which I praised for "declining to introduce common-law marriage by judicial fiat. Now ignoring the fact that common-law marriage is by definition a judicial creation, the question remains whether that is the correct way to frame that case. It is certainly not the approach taken by the infinitely more knowledgeable Strasbourg Observers.

Some facts and other background:
Let me shamelessly plagiarise Strasbourg Observers for the facts.

One night a man was shot dead in a café and the police suspected A of being the shooter. They summoned van der Heijden, the long-time partner of A. and mother of his children, as a witness. She refused to testify however, arguing that the testimonial privilege accorded to spouses and registered partners also applied to her. The Regional Court subsequently ordered her detention for failure to comply with a legal order. She was kept in detention for 13 days in total. She eventually complained to the Strasbourg Court that the attempt to compel her to give evidence constituted a violation of her right to family life (Article 8 of the Convention).

Common-law marriage means, essentially, that people who live together as if they are married, and who hold themselves out to the world as spouses, are treated by the courts as married. As a legal institution, it was pretty rare to begin with, and now it's all but extinct, especially in practice.

With these two ingredients in place, it should be obvious what the connection is: the applicant, Van der Heijden, asked the Court of Human Rights to recognise a right to common law marriage for the purposes of spousal privilege. Obviously this is an extreme short-hand for what was going on; I was trying to squeeze as many references as possible into my 1500 word allotment. At the same time, I was also trying to save words by phrasing my summary of the holding in such a way as to imply as unsubtly as possible why I thought this was the correct result.

In the wake of having attended one too many womens studies classes, Ms. Timmer on Strasbourg Observers summarises her opinion of the ECtHR's judgement as follows:

Quite frankly, I find this area of case law baffling. When is a relationship worthy of legal recognition and protection? What is the decisive factor in determining whether the Court goes to the side of legal formalism or applicant-oriented realism? Is it the existence of a European consensus? The majority maintains that there is no consensus regarding testimonial privilege in Europe (par. 61). In a thorough discussion of the van der Heijden judgment (in French), Nicolas Hervieu points to the ‘malleability of the concept of European consensus’. Or, another option, is the real issue here the valorization of heterosexual marriage?

Now I can agree with this to a point. (Well, the first part. The valorization of heterosexual marriage can go frack itself as far as I'm concerned.) The Court's art. 8 case law is a mess in any number of ways, meaning that it fails the elementary requirement of being at least vaguely predictable. That said, I don't think this case is all that messy. Paragraph 61, for example, couldn't be clearer:

61. Turning to the case in hand, the Court first observes the wide variety of practices among Council of Europe member States relating to the compellability of witnesses (see paragraphs 31-36 above). Although the lack of common ground is not in itself decisive, it militates in favour of a wide margin of appreciation in this matter.

Not decisive, but not unimportant either.

Beyond that - and in art. 8 cases more generally - the problem is that that article is the most vague of all of the ECHR's basic freedoms. Behold: "Everyone has the right to respect for his private and family life, his home and his correspondence." Potentially, that one allows the Court to rewrite the rules on almost anything. Doing so, however, would fatally undermine the legitimacy of the Court, which is why the Court has generally backed away on art. 8 cases that really mattered. No right to abortion, no right to same-sex marriage, etc. (Compare this with the relative confidence displayed by the Court in the prisoner voting cases.) The question is simply one of how to get there. Emphasising realism or formalism depending on the desired outcome is one way. The tried and true method of the Margin of Appreciation is another.

To be sure, this is not an ideal situation, but it is not completely random either. There is a logic to the Court's general tendencies, it is just not a legal logic. Instead, a legal logic would require the Court to tread carefully in its art. 8 case law, slowly building from one case to the next. (Also a topic emphasised in my column.) In such a world - the Arcadia of lawyers - the applicant in Van der Heijden would still lose. There is simply no ECtHR precedent that is sufficiently on point to overcome what we might call the presumption of Convention-compatibility created by the lack of consensus among the European countries. Hence my praise for this judgement: the Court already does plenty of silly things with art. 8 when they think no one is looking. Here, for once, they were as modest as they are supposed to be.

Subsidiarity: A Yellow Card

Praise Jehovah! It has finally come to pass. The national parliaments of the Member States have issued their first ever yellow card under art. 7 of Protocol (No. 2) on the Application of the Principles of Proportionality and Subsidiarity (p. 206 here). As a refresher, the article says, in the relevant parts:

 2. Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments (...) the draft must be reviewed. (...)

After such review, the Commission (...) may decide to maintain, amend or withdraw the draft.
Reasons must be given for this decision.

The lucky proposal concerns the right of collective argument, specifically the Commission proposal in dossier 2012/0064(APP). At the time of writing, there are reasoned opinions issued by the following Member States (with the number of votes between brackets): Belgium (1), Denmark (2), Finland (2), France (1), Latvia (2), Luxembourg (2), Malta (2), Poland (1), Portugal (2), Sweden (2), the Netherlands (1), for a total of 18 votes, i.e. exactly one third of 27*2=54 total votes available. (Information courtesy of IPEX here.)

While we eagerly await the Commission's review, we might start by taking a look at what it had to say for itself in the original proposal:

 3.3. Subsidiarity and proportionality principles

(...) The objective of the Regulation, to clarify the general principles and EU rules applicable to the exercise of the fundamental right to take industrial action within the context of the freedom to provide services and the freedom of establishment, including the need to reconcile them in practice in cross-border situations, requires action at European Union level and cannot be achieved by the Member States alone.

Moreover, in line with the Treaty, any initiative in this area will need to respect not only the autonomy of social partners but also the different social models and diversity of industrial relation systems in the Member States.

As regards the contents of the proposal, respect for the subsidiarity principle is further ensured by recognition of the role of national courts in establishing the facts and ascertaining whether actions pursue objectives that constitute a legitimate interest, are suitable for attaining these objectives, and do not go beyond what is necessary to attain them. It equally recognises the importance of existing national laws and procedures for the exercise of the right to strike, including existing alternative dispute-settlement institutions, which will not be changed or affected. Indeed, the proposal does not create a mechanism for the informal resolution of labour disputes at national level with a view to introducing some form of pre-jurisdictional control over union actions (as suggested in the 2010 Monti report), and restricts itself to indicating the role of alternative informal resolution mechanisms that exist in a number of Member States.

By Commission standards, this is actually an uncharacteristically thorough analysis of the question of subsidiarity. That does not change the fact, of course, that it is also very wrong. If this kind of reasoning is enough to explain why a Europe-wide regulation of the right to strike is necessary, literally anything can survive subsidiarity review.

Turning to the substance of the proposal, I have to say that subsidiarity would not be my first concern. Instead, I'm more concerned about the utter redundancy of the substantive text. Running to a staggering 4 articles on 1½ pages, the proposal says pretty much nothing of any great interest. Throughout, it studiously avoids upsetting the law anywhere. Or, as art. 1(2) of the proposal puts it:

This Regulation shall not affect in any way the exercise of fundamental rights as recognised in the Member States, including the right or freedom to strike or to take other action covered by the specific industrial relations systems in Member States in accordance with national law and practices. Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take collective action in accordance with national law and practices.

Truer words were rarely spoken.

That said, it is important to recognise the significance of this use of the yellow card. It would be even better, of course, if the Commission were to actually withdraw or amend its proposal in response. We await its decision breathlessly...

SGP v. The Netherlands

The ECtHR judgement, earlier this month, in SGP v. the Netherlands is an amazing illustration of the glories of legal messiness and Dutch poldermodel lawyering. Unfortunately, though predictably, it ends with a bit of a fizz.

The facts, in a nutshell: The Staatkundig Gereformeerde Partij is the most orthodoxly Christian party in the Netherlands, and also our oldest political party. Since 1918, they've consistently held 2 seats in Parliament, and on general principle they've never submitted a woman candidate for Parliament, nor do they intend to. Question: are they legally permitted to discriminate against women in this way, and is the State permitted to subsidise them as it does with all political parties?

Let the legal fun begin: The former question is one that belongs in the realm of civil law: to some extent, it is a straightforward tort action, and theoretically it could have also been an action to have the party annulled under art. 2:19 Civil Code, as was done with the paedophile party recently. Such litigation starts at the District Court, with an appeal to the Court of Appeals ending up - on points of law - with the Hoge Raad, the High Council. In this particular litigation, the District Court found that the plaintiffs lacked standing to sue the SGP in the absence of an actual real-life woman who might want to stand for election as an SGP candidate. At the same time, the court did hold that the State was acting unlawfully by subsidising the party and ordered it to stop. This decision was overturned on appeal - a decision upheld in the High Council - on the grounds that the SGP was acting unlawfully but that it was not within the power of the judiciary to tell the Minister which parties to subsidise.

The subsidy question, however, is also/primarily of administrative law. It asks the court to annul a decision made by the executive branch of government, specifically by the Minister for the Interior (in this case the also pretty orthodoxly Christian Piet-Hein Donner, more about him later). Administrative litigation also starts at the District Court, but goes from there straight to the judicial division of the Council of State. In this litigation, the District Court held that the Minister acted correctly in obeying the above-mentioned decision by the civil courts.  The Council of State, however, sided with the party and ordered the Minister to take a new decision that placed a greater emphasis on the importance of pluralism in the party-system.

In other words, the Minister was faced with two conflicting final decisions, neither of which gave anything in the way of guidance as to what should be done next. So what is Piet-Hein Donner to do? Being a Dutch Christian-Democrat, he sent the SGP a letter, asking them essentially whether there was any formal rule that made it impossible or at least more difficult for a woman to end up as a candidate for the SGP. The SGP replied that formally all persons are treated equally. (In response to the first District Court judgement, the party had at least taken the step of allowing women to become members.) For that reason, the Minister decided that there was no need at this point to do anything at all, the normal subsidy was to continue. On February 1 this year, Piet-Hein Donner started work as the new Vice-President of the Council of State (HM the Queen is the President of the Council, so that makes the Vice-President the person in charge of day-to-day affairs.)

Before reflecting further on this clusterfuck of a litigation history, it is interesting to see what the European Court of Human Rights did with this formal vs. practical impossibility argument:

76. The issue in the present case is the applicant party’s position, restated in the present proceedings before the Court, that women should not be allowed to stand for elected office in general representative bodies of the State on its own lists of candidates. It makes little difference whether or not the denial of a fundamental political right based solely on gender is stated explicitly in the applicant party’s bye-laws or in any other of the applicant party’s internal documents, given that it is publicly espoused and followed in practice.

This seems correct. In the Minister's defence, however, his decision was meant only to cover the period until the Court would rule, so a certain status quo bias on his part was defensible. 


Another fairly obvious thing to say about this litigation is that it shows once again why it is not a good idea to have four highest courts, as the Netherlands does. (In addition to the High Council and the Council of State, which we already encountered above, there is the Central Council of Appeals and the Commission of Appeals for Business.) There is no good way to resolve the tension between the judgement of the civil courts and the judgement of the administrative courts. However, this is a discussion that has been going on for decades, so far with little success.


The more interesting question is what to do with the SGP and its position on women politicians. For the ECtHR it is an easy one:

77. The Supreme Court, in paragraphs 4.5.1 to 4.5.5 of its judgment, concluded from Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women and from Articles 2 and 25 of the International Covenant on Civil and Political Rights taken together that the SGP’s position is unacceptable regardless of the deeply-held religious conviction on which it is based (see paragraph 49 above). For its part, and having regard to the Preamble to the Convention and the case-law cited in paragraphs 70, 71 and 72 above, the Court takes the view that in terms of the Convention the same conclusion flows naturally from Article 3 of Protocol No. 1 taken together with Article 14. 

78. That said, the Court must refrain from stating any view as to what, if anything, the respondent Government should do to put a stop to the present situation. The Court cannot dictate action in a decision on admissibility; it is, in any case, an issue well outside the scope of the present application. 

79. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 

This is almost certainly a correct application of the Court's case law. However, personally I don't like it. Much as I am perfectly willing to place the right of the inviolability of the person above the right of parents to carry out religious ceremonies with their children, that does not mean that I would resolve a conflict between the freedom of religion and the freedom of association on the one hand and the right of non-discrimination on the other hand in the same way. Specifically, I would object to this statement of the Court as being much too restrictive of genuine party pluralism:

71. The Court has also held that a political party may, under the Convention, pursue its political aims on two conditions: firstly, the means used to those ends must be legal and democratic; secondly, the changes proposed must themselves be compatible with fundamental democratic principles (see Refah Partisi and Others, cited above, § 98). Provided that it satisfies these conditions, a political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention (Refah Partisi and Others, § 100).

Like Bernard Shaw said in the preface of Major Barbara:

To guarantee his freedom on condition that you approve of his moral character is formally to abolish all freedom whatsoever. This is the lesson Democracy has to learn before it can become anything but the most oppressive of all the priesthoods.

Political parties should be free to espouse just about any viewpoint they like, as long as they do nothing more than espousing. That goes for paedophilia as much as for discrimination against women. The freedom of speech and association of political parties is at the very core of our liberty and democracy, and it must be protected with the absolute maximum of vigilance against the politically correct priesthood. 


The whole benefit of a proportional representation system like the Dutch is supposed to be that it allows a whole gamut of political parties to enter Parliament, ranging from the deranged animal rights people to the equally deranged ultra-orthodox Christians. We, as a nation, have chosen a system that defends the right of individuals to stand up in Parliament to argue that fish have feelings too, or that televisions are the eye of Satan and therefore do not belong in the homes of good Christians. (No, I didn't make either of those two up.) What is the point of having such a pro-pluralism system if at the same time you are going to install all sorts of gatekeepers to keep the weirdos out? 


That said, it is important to remember that this is not actually a case of horizontal effect. In the end, the case against the SGP directly was thrown out in the District Court. The only thing at issue here is about € 500.000 in annual state subsidy, a sum that represents about a third of the party's annual income. Still, I would tend to agree with the Council of State: the freedom of opinion and association is given short shrift here.

Holocaust defamation

OK, it's time to do some serious thinking about free speech and defamation. Who should prove what and how?

Just a little bit of background, especially for the non-lawyers: I've been reading Deborah Lipstadt's book about the defamation suit brought against her by the (in)famous Holocaust-denier David Irving. He didn't appreciate being called a Holocaust denier and a crappy historian. (I'm paraphrasing. The exact language complained of is summarised by the Judge here.) Now being called those things obviously has the effect of reducing one's reputation "in the eyes of right-thinking members of society", so little argument was made about whether or not they were defamatory. Instead, the crux of the case was whether the defendants (prof. Lipstadt and her publisher, Penguin) could prove justification on the grounds of substantial truth. In other words, you're allowed to ruin people's reputations, as long as you speak the truth doing so. (Or if you do so as part of court proceedings, as fair comment, in Parliament, etc.) Now obviously, in this case justice was done, given that the Judge unhesitatingly held for the defendants, but the question remains whether this is the right way to sort out these kinds of problems. Was it really just for prof. Lipstadt to be dragged all the way from Atlanta to the Law Courts in London to defend her statements? Shouldn't the law have given her the benefit of the doubt, instead of forcing her to spend millions of pounds and years of her life arguing with such an odious man?

Before we get to the human rights of the story, let's start with the analytical logic of who claims what. After all, it is a legal rule of ancient provenance that parties have to prove what they claim. (In good Latin: Ei incumbit probatio qui dicit, non qui negat. Cf. Digest 22.3.2.) So who claims what, exactly? Well, the key thing to remember is that the tort of defamation is not about lying, but about damaging someone's reputation. It follows that the plaintiff claims and proves that the offending statements can indeed be attributed to the defendant, and that the statements in question are defamatory, i.e. tending to lower the plaintiff's reputation in the eyes of right-thinking members of society. This is where the first loopholes come in. The "right-thinking" part is only a little one; this is where the courts can step in and say that being called a homo is not defamatory, because only idiots would think less of you if you were gay. The big loophole is that by law statements of opinion are not defamatory. Much as my saying that David Irving is a creep might hurt his reputation, given how much value other people attach to my opinions, the offending statement has to allege actual facts in order to be capable of being defamatory. The reason for this is undoubtedly a mixture of the desire to protect people's freedom to express their opinions and the notion that opinions without allegations of fact do not/should not affect the plaintiff's reputation. How can an ipse dixit without any reference to concrete facts hurt someone's reputation? In actual practice, of course, it can, but for the purposes of the tort of defamation, it cannot.

The defendant, in turn, can claim and prove that the plaintiff didn't have much of a reputation to begin with, that the offending statements were in one way or another privileged (parliament, court, press, fair comment) or that they are true.

Now in the US they have turned this wonderfully crafted common law approach upside down, by making the falsity of the statement an element of the tort. In other words, they've pretended that the plaintiff is complaining that he was lied about. Of course, this is not really true. People tell lies about other people all the time, but it doesn't become defamation unless it hurts someone's reputation. The lie is just incidental to the tort. The reason why the tort was framed this way has nothing to do with the actual posture of the case, and everything with the First Amendment to the United States Constitution:

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While defamatory statements are not covered by the Amendment, it was felt that the definition of the tort should be as narrow as possible so as to avoid chilling speech that was protected. (As a side note: earlier this month, in United States v. Alvarez, the United States Supreme Court somehow managed to leave everyone in confusion about whether or not knowing falsehoods can ever be protected speech. Reading between the lines, however, the better view is probably that there is no blanket First Amendment exception for knowing falsehoods. In any event, there is certainly no blanket exception for negligent falsehoods. Personally, I think that at least false statements of fact that are made in the knowledge of their falsity, with actual malice or with reckless disregard for the truth should never be protected speech.)

We will leave to one side, for now, the fact that in the US the case of Irving v. Lipstadt and Penguin would have been dealt with under the precedent of New York Times v. Sullivan, which gives an even greater degree of protection for speech about public figures like Irving. Instead, the interesting question is how this difference in the rules of the game works out in practice, and how it should work out in practice. The first inkling that things are not so black and white appeared already in one of the first sentences of this post, when I talked about the offending statements being *substantially* true. While this criterion is defined further in the case law, it is obviously an important safety valve for preventing injustice, and it is important that the courts use it. The same goes for the question of whether something is a statement of fact or an opinion. Just because something sounds like a statement of fact, doesn't mean that it is, as we saw in the Dutch All Cops Are Bastards case, where the court didn't even bother to explain why this wasn't a case of defamation. Likewise, a number of the statements listed by the court as being potentially defamatory strike me as statements of opinion instead, most importantly the first part of the second statement of the six that the Judge distilled from the material (par. 2.15):

Irving is one of the most dangerous spokespersons for Holocaust denial, (...)

The rest of that sentence does of course contain numerous claims of fact:

[Irving] has on numerous occasions denied that the Nazis embarked upon the deliberate planned extermination of Jews and has alleged that it is a Jewish deception that gas chambers were used by the Nazis at Auschwitz as a means of carrying out such extermination;

On the whole, it is clear that prof. Lipstadt made some potentially very damaging allegations, especially statement iii:

Irving, in denying that the Holocaust happened, has misstated evidence; misquoted sources; falsified statistics; misconstrued information and bent historical evidence so that it conforms to his neo-fascist political agenda and ideological beliefs;

and it is right and proper that she should be asked to support those claims with evidence, as indeed she did. (Incidentally, like the Judge, I don't think it matters very much why he did the things alleged here. What is damaging for his (professional) reputation is that he did. He's a crappy historian because he just makes stuff up. The whole story about the extent to which Irving was himself an antisemite is beside the point. Adhering to one political ideology or another is not a fact that is of itself capable of being defamatory, under the above-mentioned "right-thinking" loophole.)

So how do we prevent frivolous lawsuits that are brought for no other reason than to bully the defendant into settling? How do we avoid chilling too much speech?

In the Irving case, the most important mechanism for preventing such shenanigans failed: the losing side paid some of the defendants' costs, but not nearly all of them. More importantly, while Irving was more or less bankrupted as a result, he wasn't so bankrupted that he couldn't still travel around the world. A functioning system of cost orders for losing plaintiffs is essential for preventing frivolous suits.

A second part of the solution is in the American Supreme Court cases of Twombly and Iqbal. In those cases, the Supreme Court dialled up the pleading standard in certain civil cases, i.e. the level of detail and plausibility that the plaintiff has to observe in his initial pleadings in order to avoid having his case thrown out under Rule 12(b) of the Federal Rules of Civil Procedure. Quoting Iqbal:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. ... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying plead­ings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal con­clusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in Twombly illustrates the two-pronged approach.

Whether such a thing is possible under English law as it stands, I do not know, but either through statute law or through case law England has to create a means of filtering unmeritorious cases earlier in the process. That still means letting cases like prof. Lipstadt's go to trial, but it at least allows the judge to cut down on the range of things that the defendant needs to prove if they're relying on a defence of substantial truth.

An entirely separate thing that needs fixing is the international rules about jurisdiction in defamation cases. In today's globalised world, this can only be done through a treaty. A strict choice limiting the number of possible fora needs to be made. So far not even the European Union, working under its Regulation 44/2001, has been able or willing to make such a choice. In that Regulation, the court of the jurisdiction where the tort was committed still has jurisdiction to hear the case (art. 5(3)), and in cases of (internet) defamation, that can be anywhere. The CJEU concluded in eDate v. X and Martinez v. MGN, the most important case in this area so far, that:

[T]he person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

In other words, there are two courts that have jurisdiction to award damages for the whole word, and every other court with an internet connection can award damages for their particular Member State. Instead, what we need is a hard and fast worldwide rule, enacted by treaty, that limits the jurisdiction over on-line torts and all defamation cases to the court of the jurisdiction where the defendant is habitually resident. It should not be possible to sue prof. Lipstadt or dr. Rachel Ehrenfeld anywhere other than in the United States, not even by adding their English publisher as a co-defendant. At the moment, there is some room for keeping out truly outrageous cases of forum shopping by using the forum non conveniens doctrine, but that is in no way enough. National solutions, like the abhorrently-named SPEECH Act, are tragic cases of - in this case - American jingoism that do little to solve the underlying problem. Limiting enforcement is at best a second-best solution, especially for defendants with substantial assets abroad. Instead, the foreign case against them shouldn't be brought in the first place.

Today in Luxembourg

The final batch before the Court’s summer break:

In anti-terrorism news, the Parliament lost its bid to get a say in asset-freeze decisions. According to the Grand Chamber (per Judge Rosas), Art. 215 TFEU is an appropriate legal basis, there is no need to use art. 75 TFEU. Parliament v. Council

The Grand Chamber (per Judge Toader) also held that Regulation 44/2001 potentially applies to an employment conflict between a former staffer of the Algerian embassy in Berlin and the embassy. I say “potentially” because of course the contract frame is not appropriate for all embassy personnel, although it appears to be for this guy. Mahamdia v. Algeria

In Competition Law, the Grand Chamber upheld the General Court’s judgement in the Italian Raw Tobacco cartel case in its entirety, meaning that on the whole the litigation is only a partial win for the Commission. On a quick scan, I can’t tell why this was taken up by the Grand Chamber. Alliance One et al. v. Commission

Finally, the Grand Chamber upheld the General Court’s judgement in Zhejiang Xinan Chemical Industrial Group v. Council, where that court annulled an anti-dumping duty. The bulk of the judgement deals with the consequences of government ownership for determining whether the applicant company qualifies for Market Economy Treatment (MET). Council v. Zhejiang Xinan Chemical Industrial Group

In ebookers.com Deutschland v. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV the Court (per Judge Arestis) again put  a stop to the things booking agents and airlines can do with “optional price supplements”. Most importantly, under art. 23(1) of Regulation 1008/2008, prices have to be transparent and additional services always have to be on an opt-in basis. Cf. Recent Developments in European Consumer Law Blog

In a case about VAT exemptions for international airline operators, the Court (per Judge Prechal) held for the taxpayer. The relevant exemption also extends to charter companies like the plaintiff. A Oy

The Netherlands achieved a glorious victory in the Schengen case of Adil v. Minister voor Immigratie, Integratie en Asiel (NL, DE, FR). The random checks carried out by Dutch customs officials in a 20 km zone from the border are in compliance with the Schengen Border Code. The related case of Jaoo is still pending.

Once you cut through all the tax creativity, the gist of Veronsaajien oikeudenvalvontayksikkö v. A Oy (a different one that the previous) is that Norway gets treated more or less like an EU Member State here.

The Court (per Judge Juhász) rejected the appeal in the copper fittings cartel case. Kaimer et al. v. Commission (DE, FR)

In Pie Optiek v. Bureau Gevers et al., the Court (per Judge Lõhmus) followed AG Trstenjak in holding that the “straw-license” for the express and sole purpose of allowing the licensee to register a .eu TLD for www.lensworld.eu does not suffice to establish a “prior right” in the sense of art. 12(2) of Commission Regulation 874/2004. Cf. IPKat

In Dülger v. Wetteraukreis, the Turkish worker wins again in a Decision 1/80 case.

AG Cruz Villalón tried to disentangle an Italian contract awards mess, where the city may or may not have been entitled to rely on the in-house award exception to Directive 2004/18. The AG defines “in-house” by focusing on whether the city has effective control over the contracting entity. Joined Cases Econord v. Commune di Cagno, Varese, Solbiate and (again) Varese

In the wake of the recent Dutch studiefinanciering case, AG Cruz Villalón proposes that a Belgian measure which gives allowances for young persons seeking their first job only to persons who have spent the last six years in Belgium should be considered in violation of the free movement of workers. Prete v. Office national de l’emploi

According to AG Kokott, Belgium is entitled to impose a bioethanol mandate that requires oil companies to sell at least 4% of their volume in bioethanol form. Apparently the history of this area includes the enthusiastic pro-bioethanol Directive 2003/30 and the slightly more balanced Directive 2009/28. Belgische Petroleum Unie VZW et al. v. Belgium

AG Mengozzi proposes that the Commission should get only a partial – and technical – win in its appeal against the competition law judgement in Tomkins v. Commission. The reduced fine stands. Commission v. Tomkins

A Liberal Approach to Circumcision

I have to admit, when Max Steinbeis wrote it down in German, he gave me pause: "Wenn dieses Urteil richtig wäre, dann müssten ausgerechnet deutsche Staatsanwälte (...)  Juden verfolgen, weil sie tun, was Juden tun." (Like Harry Mulisch already said when he was writing about the Holocaust and the Eichmann trial, sometimes quotes should simply be left in the original German.) But such Godwin-idiosyncrasies aside, I still think the analysis of the court in Cologne is correct.

To start with the most "cowardly" line of reasoning, i.e. the approach that avoids as much as possible the dangerous confluence of law and religion, I have to say that I do not see any principled way to distinguish between male and female circumcision. Apparently, the idea is that the male variety is much less serious, but that ignores the fact that FGM (female genital mutilation) is forbidden even in the "nick" version. (Cf. the discussion of Type IV FGM here.) Moreover, even if the premiss were granted, as long as we are still talking about surgical procedures and cutting off pieces of tissue, any attempt at proportionality analysis seems more than a little misplaced. What is certain is that if Type IV FGM is forbidden, there is no principled way to simultaneously allow male circumcision.

In desperation, one might even try to make a distinction based on the alleged difference in religious significance. This argument, too, is doomed because there is no question that many parents who would like to circumcise their daughters feel a religious as well as a cultural imperative for doing so, and we are not in the habit of disentangling the religious and non-religious cultural roots of other people's beliefs. Just like we cannot get away with saying that a burqa is required only by Pashtun culture, not by any version of the Muslim religion, regardless of what these women themselves think, we cannot deny the religious meaning other people might attach to FGM.

The court in Cologne, of course, did not approach the problem this way. Instead, the judges faced the Constitutional issue head-on. The right of the inviolability of the person of art. 2 GG versus the right of parents to raise their children as they see fit of art. 6 GG, with the freedom of religion of art. 4 GG in the middle, given that it can go either way. (There is, after all, the freedom of the child not to have a religion forced upon them going one way and the right of the parents to pass on their religious beliefs to the next generation going the other.)

I agree with some of the guest-bloggers on the Verfassungsblog that the court takes some strange turns to resolve this tension, particularly by invoking statute law - like section 1631 Civil Code, which excludes corporal punishment from the rights that come with parental custody - to break the tie. The underlying argument is clear, though. We do not allow for a permanent solution to a temporary problem:

Zudem wird der Körper des Kindes durch die Beschneidung dauerhaft und irreparabel verändert. Diese Veränderung läuft dem Interesse des Kindes später selbst über seine Religionszugehörigkeit entscheiden zu können zuwider. Umgekehrt wird das Erziehungsrecht der Eltern nicht unzumutbar beeinträchtigt, wenn sie gehalten sind abzuwarten, ob sich der Knabe später, wenn er mündig ist, selbst für die Beschneidung als sichtbares Zeichen der Zugehörigkeit zum Islam entscheidet.

Circumcision, like my cousin's ill-advised tattoo, is permanent. The problem here, on the other hand, will disappear on its own as the child grows older, and becomes able to decide for itself whether or not to be circumcised, whether or not to continue to adhere to the Jewish or Muslim faith. This seems to me to be by far the most obvious and straightforward way to resolve this clash of rights problem.

Now I realise that this answer is far from satisfactory for those more directly concerned than I. Not only will Jews and Muslims not like the outcome, the will also not like the way that I arrived at it. They will consider it overly abstract in its reasoning, with insufficient attention for the practical implications of such a verdict. They might bring up Hitler and the 614th commandment to conclude that "Liberalism constitutes the view from nowhere", whatever that means. Christian scholars like the guest-bloggers on the Verfassungsblog, joined by Mrs. Merkel, will argue that circumcision should be legal, and that therefore it is. That is a flawed mode of reasoning, however. Not all things that should be legal, are, and vice versa. Instead, since time immemorial legal scholars have distinguished between the sui generis study of the lege lata and the moral, philosophical, sociological, psychological and economic studies of the lege ferenda. It is important not to confuse the two. (By the way, apologies for the way I mangled my Latin grammar there.) The value of the law as a tool for dispute resolution rests on its ability to offer dispassionate analysis. If lawyers, like John Nash, decide that they really prefer to decide on the outcome of their analysis first, they are in the wrong line of work.

If Germany wishes to avoid the situation where its prosecutors have to prosecute Jews for doing what Jews do, they can always change the Basic Law. Given the concept of the Margin of Appreciation used by the European Court for Human Rights, that should be more than enough. But until the Basic Law is amended to explicitly allow for male - but not female - circumcision, any court ruling that reads such a distinction into the Constitution is based on wishful thinking more than dispassionate legal analysis. And that would be a pity.

P.S. It occurs to me that there is one thing that I’ve not addressed: the horizontal effect of art. 2 GG. To what extent does that article require the state to criminalise murder, assault, etc.? Since I know next to nothing about the German case law on this question, I can do no better than admit this as one possible exception to my conclusion. I have no basis to dispute that the German courts might legitimately conclude that the German legislature need not criminalise all forms of assault.

What if you didn't even notice?

What if the government violated your rights, and nobody noticed? What if the government violated your rights, and you didn't even notice? If a tree falls in a forest, and there's nobody there to hear it, did it really make a sound?

The reason for these ruminations is the recent European Court for Human Rights judgement in Herrmann v. Germany. It took nothing less than the Grand Chamber of that court to defend the rights of Mr. Herrmann, rights that he never realised were being violated until 10 years after the alleged violation began.

Now this is not some case of hidden violation of rights, as where someone pollutes your land in a manner that is not easily detectable. No, here the violation is not easily detectable because it's really, really small.

As such, the case of Herrmann v. Germany is a good opportunity to consider the principle of de minimis non curat lex. In the specific context of European law - here: ECHR law - that translates into an issue of subsidiarity. The pan-European authorities should not interfere with the legal orders of the sovereign states of Europe in cases where there is only a de minimis benefit to them doing so.

But first the facts. From the case:

11.  Under the German Federal Hunting Act (Bundesjagdgesetz), owners of hunting grounds with a surface area of less than 75 hectares arede jure members of a hunting association (Jagdgenossenschaft), while owners of larger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate of less than 75 hectares each, which he inherited in 1993 from his late mother. He is thus a de jure member of a hunting association, in this case the hunting association of the municipality of Langsur. 

12.  On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority seeking to terminate his membership of the hunting association. The authority rejected his request on the grounds that his membership was prescribed by law and that there was no provision for the termination of membership. 

24.  Having been invited by the President of the Grand Chamber to provide the Court with additional information regarding the actual use of the applicant’s land, the Government submitted a declaration by the farmer who had taken out a lease on the agricultural land to which the applicant’s plots belonged. The farmer submitted that she regularly used the land to raise cattle destined for slaughter. This was confirmed in awritten statement by the mayor of the municipality of Langsur. The applicant submitted that he had visited the plots several times over the previous years without ever seeing any cattle. He had never given permission for his land to be used in that way and would take legal action against any possible abuse.

Now there is plenty to be said about the extent to which this constitutes an infringement of the applicant's right to peaceful enjoyment of his property, his right to freedom of thought and conscience or his freedom of association. Most of it is being said on the UK Human Rights Blog here and at the Strasbourg Observers Blog here. Personally, I'm OK with considering this an infringement of the right to property, absent some showing of a compelling government interest in keeping the stock of certain animals within reasonable bounds, but I'm not very attached to that conclusion. (The Chamber stuck this case under the margin of appreciation, while the Grand Chamber found an infringement of art. 1 P 1. Both ducked the issue of art. 9 ECHR.) Like I said, the reason why this case is interesting is because it is so uninteresting.

This point is only raised towards the end of the dissent of Judges Björgvinsson, Vučinić and Nussberger:

Moreover, the situation in the specific case has to be taken into account. While it is true that human rights protection has to be practical and effective and not theoretical or illusory, it is also true that the Court should take into account whether there is a real or only a theoretical human rights problem. In the case at hand the applicant inherited the land from his mother in 1993 and has de iure been a member of a hunting association since then. Nevertheless, he complained about a human rights violation only in 2003, that is to say ten years later, allegedly – as his lawyer stated at the hearing – because he had been unaware of the fact that he was a member of a hunting association. In real human rights cases applicants know (and feel) that their rights are being violated. Furthermore, the applicant did not have any knowledge about the use of his land, being unaware that animals were being raised there for slaughter. There are no indications of any damage to his property or any other visible or tangible problems caused by the application of the legislation in force. Likewise, he never tried to influence the other members of the hunting association, although he claimed that the latter had some discretion, for instance to reduce the range of species to be hunted (see paragraph 97 of the judgment). Finally, he did not allege that he had ever witnessed a hunt on his property.

All in all, the Court has allowed itself to be drawn unnecessarily into the micromanagement of problems which do not need a solution at European level and would be better solved by national Parliaments and the national hunting authorities. In our view this is an excellent example of a case in which the principle of subsidiarity should be taken very seriously.

And yet to me, it appears to be the key issue of the case. I agree with the dissenters, to the point that I think the Court should have declared the case inadmissible under art. 35(3)(b) ECHR: "The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that (...) the applicant has not suffered a significant disadvantage". Once you get past this point, the rest of the case is quite straightforward, depending only on the size of the margin of appreciation that one wishes to accord to the High Contracting Parties, as so often.

This is not just a matter of high principle, where pan-European uniform standards should be avoided whenever possible, but also a matter of pragmatism. If the Court already complains so much about its backlog of cases, the last thing it should be doing is wasting time on some whining German with an axe to grind. And even after the - in retrospect erroneous - Chamber judgement, there was no reason for the Grand Chamber to take up the case. The mere fact that a Chamber judgement is incorrect cannot be enough to warrant Grand Chamber intervention. This case was a close call, hunting is hardly a grave human rights issue, and the Chamber erred on the side of giving the national legislatures (too) much freedom, so the Grand Chamber could have easily let the initial judgement stand. Which makes one wonder: Why didn't they? Perhaps that British blogger I read the other day - I can't remember which one and I can't be bothered to look it up - was right. Maybe there are too many law professors on the Court, and not enough actual judges.