Litigation takes places within a multi-level system of legal orders. Each country constitutes a legal order with a constitution as its main reference or, in the case of the United Kingdom, an unwritten constitution, implemented through legal practice.
However, the national legal order interacts with the two European systems of legislation and adjudication, one formed by the Council of Europe and the ECtHR and the other by the European Union and the CJEU. Indeed, the national legal order no longer exists as a separately constituted legal realm, but instead forms part of a European legal system in which the ECtHR influences the outcome of court proceedings and legislative acts, while the CJEU shapes the domestic legal order.
Thus the legal spheres of the ECtHR and the CJEU play an important role, as they interrelate with the national legal systems.
Before examining the existing case law on media freedom and independence, we will briefly describe the basic rules of the interaction between these three different legal orders. This analysis will address the status of the ECHR and the ECtHR judgments within the national legal systems and the relationship between national courts and European courts with regard to freedom of expression and media freedom and independence.
3.1 The legal position of European court decisions in the national legal order The status of the European court decisions in the national legal order reflects the fact that the ECHR, the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) are different types of international treaties.
While the ECHR must be incorporated in the national legal systems of the states party to the Council of Europe, the TEU, the TFEU and their predecessors apply directly in the Member States after ratification is completed. The ECHR usually assumes the position of domestic law, sometimes with supra-legislative status, but also with infra-constitutional status. It is only in Austria that the ECHR is considered to have outright constitutional status (Grabenwarter, 2009: 16). The ECHR often has considerable influence on domestic law and judicial decisions with regard to fundamental rights. This influence is at times comparable to that of a constitutional legal framework. In the countries under study, it seems indeed that the ECHR generally prevails over domestic legislation, and can assume a quasi-constitutional status. In Spain, the ECHR does not have constitutional value as such, but is often used to interpret rules contained in the Spanish Constitution (De la Sierra and Mantini, 2011: 15-16). The ECHR can be invoked, even before constitutional courts, as is the case in Germany where applicants can refer to the ECHR in conjunction with the corresponding fundamental right of the national Basic Law.1 Due to the ECHR’s direct effect in the national legal order once incorporated or via explicit protection of the ECHR in national constitutions (as in Croatia, see Council of Europe, 2006: 254), constitutional courts regularly have the power to nullify domestic law due to violations of the ECHR. Turning to EU law, this covers even more areas and more comprehensively influences national legislation, or even completely replaces it, as an intended result of European integration. With the entry into force of the Treaty of Lisbon in December 2009, the Charter of Fundamental Rights of the European Union became legally binding on the EU Member States when these implement EU law, albeit with important opt-outs for the United Kingdom, Poland and the Czech Republic. As such it can be expected the Charter will play an important role in the development of national media policy in the future.
The ECHR, in Article 46, requires states to implement and execute ECtHR judgments, but leaves concrete measures of implementation to the discretion of the respondent states. The ECtHR’s judgments do not have direct effect in states party to the ECHR, nor does the ECtHR have the legal competence to nullify legal provisions, state authority decisions or domestic courts’ judgments. Although the ECtHR might give directions to respondent states concerning implementation measures to adopt in pilot judgments, under Article 46 of the ECHR the ECtHR’s competence in this regard is rather limited; the ECtHR can only find a violation of a state’s duty to abide by the judgment of the ECtHR. In such cases it will refer the case to the Committee of Ministers for further consideration.
It is the supreme courts or the constitutional courts which in most countries under study have developed the legal understanding of the binding qualities of ECtHR judgments. This means the legislative, executive and judicial branches must adhere to ECtHR judgments. In Belgium, for example, ECtHR decisions have direct effect in the internal legal order. Belgian citizens can invoke the ECHR, as well as decisions made by the ECtHR, in Belgian court trials, and Belgian judges will often disregard
1 German Federal Constitutional Court, 14 October 2004, no. 2 BvR 1481/04, para. 63.
national legislation that conflicts with the ECHR or ECtHR decisions. The same can be said about the position of the German Federal Constitutional Court (GFCC), which in 2004 strengthened the position of the ECHR and the ECtHR’s judgments by stating that all German courts are obliged to interpret German law, including constitutional law, in accordance with the ECHR and with ECtHR case law. In other words, even though the GFCC stressed the ECHR has only domestic law status in Germany, it strengthened the position of the ECHR by stating that German law should as far as possible be interpreted consistently with the ECHR and the decisions of the ECtHR.2 A comparable development took place in Italy in 2007, when the Italian Constitutional Court accepted the ECHR as a parameter of constitutionality, offering broader possibilities to judges for directly interpreting Italian law in the light of ECtHR case law, with the important condition that such interpretation, based on the ECHR, must remain consistent with the Italian Constitution. It is noted that before 2007 the ECtHR had very little influence on Italian jurisprudence due to the fact that the Italian legal system lacked the possibility to re-open proceedings to implement ECtHR case law, and the ECHR was only referred to in indirect and implicit ways (see Casarosa and Brogi, 2011: 40). The United Kingdom discloses a peculiarity. The ECHR and the decisions of the ECtHR enjoy a special position in the United Kingdom’s legal system. The Human Rights Act 1998 (HRA) had a major effect on United Kingdom law by according domestic effect to key articles of the ECHR. Even though the United Kingdom Parliament, though not the devolved nations, can still legislate contrary to the ECHR, the HRA has created a presumption of Parliament not doing so (Craufurd Smith and Stolte, 2011: 8-9). Under the HRA, courts are expected to take into account ECtHR decisions, although they are not required to actually follow them. In cases of conflicting rulings of the ECtHR and the Supreme Court of the United Kingdom, courts in the United Kingdom must follow the Supreme Court’s ruling. As is mentioned in the United Kingdom case study report, this could result in a breach by the United Kingdom of Article 46 of the ECHR. In practice, however, the courts and authorities in the United Kingdom have a good record of following and implementing ECtHR judgments (Craufurd Smith and Stolte, 2011: 10 and 45).
Due to the distinct legal position of the CJEU, most countries seem to accept in practice the direct effect and supremacy of EU law and the decisions taken by the CJEU over national law, even if these principles are sometimes difficult to align with national practices and constitutional principles. The case study reports do not disclose any major controversies concerning the status of the decisions of the CJEU in the national legal orders, and confirm that on some occasions, national courts use the preliminary ruling procedure to ask the CJEU for advice on the interpretation of EU law (see sections 3.2, 4 and 10 of this report).
3.2 The relationship of domestic courts and European courts with regard to freedom of the media
Linked to the obligation to execute ECtHR judgments is the relationship of national courts and European courts pertaining to freedom of opinion and media independence.
As mentioned above, the legal spheres partly interact and partly override each other.
Wherever interaction is necessary, conflicts can occur. It is not uncommon for tensions to arise between supreme courts or constitutional courts and the European courts, especially the ECtHR. The discussions in the wake of von Hannover v.
2 German Federal Constitutional Court, 14 October 2004, no. 2 BvR 1481/04, paras. 31 and 62.
Germany,3 in which the ECtHR found a violation of Article 8 of the ECHR, previously denied by the GFCC (Müller and Gusy, 2011: 7), testify to this. German legal scholars as well as some GFCC judges criticised the ECtHR for its judgment, essentially claiming the Court had overstepped its competence, and that its legal interpretation unjustifiably curtailed the work of press photographers (see Prütting and Stern, 2005; and Wildhaber, 2005 for further information). However, after the first discussions cooled down and the ECtHR decided domestic German courts had violated the ECHR in the case of Görgülü v. Germany,4 the relationship between the GFCC and the ECtHR became established in the sense that the important role played by the ECtHR within the German legal order was accepted. Turkish high courts on the other hand have persistently disregarded ECtHR case law, especially in defamation cases and cases deemed to go against the interests of the Turkish state, such as those involving (non-violent) expressions on Kurdish and Armenian issues within Turkey.
The statement by the then Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, is evidence of the underlying tension between the ECtHR and the Turkish judicial authorities, as he points out that domestic courts have not assessed journalistic reporting in line with ECtHR case law (Hammarberg, 2011: para.
37).
Interestingly, tensions have only rarely occurred between the CJEU and national courts in cases concerning freedom of expression. In one of the cases studied, a national court in one of the 14 countries at issue requested a preliminary ruling by the CJEU on a structural question regarding television frequencies and broadcasting licences in Italy (Casarosa and Brogi, 2011: 15).5 This case is important as rather than revealing a tension between the CJEU and the national courts, it shows the different approach the CJEU and the ECtHR might follow for the same case. The ECtHR may decide on human rights issues which the CJEU did not address and which the domestic courts also did not fully consider.6 This may change with the entering into force of the Charter of Fundamental Rights of the European Union.
4. Do the European courts significantly shape media policies in the 14 countries