“Verticalised” cases before the European Court of Human Rights unravelled: An analysis of their characteristics and the Court’s approach to them

3.1.1. Conflicts involving a shared responsibility

At first glance, cases relating to the impact of the behaviour of private individuals on one’s surroundings seem to be clear examples of cases that originate from a horizontal conflict at the domestic level. An example is the case of Hatton and Others ⁴³ which concerned the noise disturbance caused by private flights operators at Heathrow Airport. In Moreno Gómez, ⁴⁴ another case about noise disturbance, the noise disturbance complained of was caused by privately owned bars and discotheques. Yet, a closer examination of the proceedings at the domestic level shows that these cases are not always such clear examples of cases originating from a horizontal conflict. The reason for this is that the alleged harmful activity is caused by two connected sets of activities, that is both activities of a private actor and activities (or omissions) of the State. In cases such as noise disturbance caused by airplane operators or bars and clubs, industrial emissions, or damage done to one’s property by third parties, these two connected sets of activities are, for example, the granting of a permit by domestic authorities and the activities of the private actor who received the permit. As a result, both the State and a private actor may be responsible for the alleged harm to an individual’s rights. For example, in Zammit Maempel, ⁴⁵ a case about yearly firework displays in a village which took place close to the applicants’ residence, the Court reasoned that

the Government considered the case as one regarding positive obligations, in that the letting off fireworks was carried out by third parties, but it was the State which issued the relevant conditions, regulations and permits. Such measures regulated interference by third parties with a person’s private rights, and required a balance to be reached between the religious and social expression of village communities and the interests of the applicants ⁴⁶

3.1.2. Purely horizontal conflicts

Different from cases related to one’s surroundings, cases involving a conflict between the right to reputation and private life of one individual and the right of freedom of expression of another individual clearly originate from a horizontal conflict, that is, a conflict between private actors, at the domestic level. In the example given in the introduction to Section 3, an individual who suffered from the publication of photos of his or her private life by the press invoked the right to reputation and private life (Article 8) before the ECtHR after the domestic courts had refused to grant an injunction against the publication of the photos. In that case, the publishing company would not be involved in the procedure before the ECtHR. Conversely, had the injunction been granted, the journalist or media company responsible for the publication could have invoked its right to freedom of expression (Article 10) before the ECtHR, and that would have meant that the alleged victim would not have any formal position in the proceedings before the Court. For example, in Axel Springer AG, ⁴⁹ a well-known actor had, at the domestic level, initiated proceedings against Axel Springer AG, a publishing company and owner of, inter alia, the German newspaper Bild. In these proceedings, the German courts had imposed an injunction against reporting on the arrest and conviction of the actor for a drug-related offence. The publishing company then brought a case before the ECtHR, stating that the injunction infringed its right to freedom of expression. In the case before the ECtHR, the well-known actor who allegedly suffered from the exercise of freedom of expression was no longer involved in the proceedings. By contrast, in cases before the ECtHR in which the right to reputation and private life is invoked, it will be the journalist or media company directly responsible for the alleged infringement who is no longer involved in the proceedings. ⁵⁰

Such clear horizontal conflicts can also be seen in applications concerning relations between family members. ⁵¹ A distinction can be made in these applications between custody and access to a child cases, and cases about access to information about one’s origin. ⁵² Custody and access to a child cases primarily arise out of a conflict between separated or divorced parents. At the domestic level, a (presumed) mother or father can initiate proceedings in order to receive custody or access rights. Depending on the outcome of the case at the domestic level, the mother, father or child can subsequently seek redress at the ECtHR claiming that the decision or approach of the domestic authorities violated his or her right to private and family life (Article 8 ECHR). For example, in Ignaccolo-Zenide, ⁵³ after several civil custody and access proceedings at the domestic level, a mother of two children complained about the inadequacy of the measures taken by the domestic authorities to enforce court decisions ordering the return of her children. This illustrates that in such cases the other parent involved in the custody and access proceedings at the domestic level is not involved in the proceedings before the ECtHR.

In access to information about one’s origin cases, applicants claim a right to information about their descent or about the circumstances surrounding their birth and early life. ⁵⁴ This claim can interfere with the rights of another private actor in three ways. ⁵⁵ First, access to such information may constitute an interference with the private lives of those who provided the information on the condition of confidentiality. ⁵⁶ Second, it may constitute an interference with the private life of a mother who gave birth anonymously. ⁵⁷ Third, it may constitute an interference with the right to bodily integrity of a presumed father who is unwilling to undergo a paternity test. ⁵⁸ Of these three types of interferences, the third type of interference most likely results in a verticalised case before the ECtHR. To explain, when, for example, a mother gave birth anonymously, the child seeking information about his or her descent cannot initiate civil proceedings against the mother, but has to initiate proceedings against the institution, often a public one, where the baby was given up for adoption. ⁵⁹ In that situation, verticalisation is not necessary for the case to be admissible. On the other hand, a case about an interference with the right to bodily integrity of a presumed father clearly arises from a horizontal conflict at the domestic level. For example, in Mikulić, ⁶⁰ a child born out of unmarried parents had started civil judicial proceedings to establish whether a man, who denied paternity, was her biological father. Before the ECtHR, the child, subsequently, complained that the domestic courts had been inefficient in deciding her paternity claim and had therefore left her uncertain as to her identity. In a similar vein, in Mifsud, ⁶¹ a presumed father complained that the imposition of a mandatory order to undergo a DNA-test in paternity proceedings violated his right to private and family life. It follows from these two examples that, in cases in which the child complains before the ECtHR, the presumed father or mother is not involved in the Court’s proceedings, whereas in cases in which the presumed father or mother complains before the ECtHR the child is not involved.

As a final example of purely horizontal conflicts, cases involving employer – employee relations can be mentioned. Such cases generally originate from civil cases at the domestic level in which employees challenge their dismissal or other sanctions taken by their employer. For example, in Eweida and Others, ⁶² Ms Eweida had started civil proceedings after her employer, the private company British Airways, had restricted the wearing of a cross visibly around the neck. After the employment tribunals had dismissed Ms Eweida’s claim that the uniform code of British Airways was an example of indirect discrimination, Ms Eweida complained at the ECtHR that these judgments constituted a violation of her right to freedom of religion taken in conjunction with the right to non-discrimination. In Schüth, ⁶³ a church employee had brought a case before the employment tribunals when his contract was terminated after his divorce and second marriage. Subsequently, Mr Schüth alleged before the ECtHR that the refusal by the employment tribunals to annul his dismissal by the Catholic Church had breached his right to private and family life. Finally, in Bărbulescu, ⁶⁴ an employee had challenged his dismissal before the domestic courts on the ground that this decision was based on the monitoring of his correspondence by his employer. After the dismissal had been upheld by the domestic courts, the employee complained before the ECtHR that the domestic courts had failed in their obligation to ensure effective protection of his right to private life. In all three cases, it was the employee who brought a complaint before the ECtHR and, consequently, it was the employer who could not be a party to the proceedings before the ECtHR.

3.1.3. Conclusion

It can be derived from the examples discussed above that verticalised cases before the ECtHR can originate from different types of horizontal conflicts at the domestic level and, consequently, different types of private actors may be involved in these cases. Indeed, the cases discussed sometimes involved two individuals, for example two neighbours or two parents, but other cases were between individuals and companies, such as an individual and a publishing house, or an employee and a company. In yet other cases, the involvement of the State authorities was so strong that already on the domestic level, there was a shared or combined responsibility. This implies that the power balance in verticalised cases is not by definition the same. In custody cases, for example, the private actors involved (the parents) are assumingly more equal compared to cases between an employee and an employer, which usually involve an individual and a company and which are, moreover, in a (former) hierarchical relationship to each other. In cases where both a public authority and a private actor bear a degree of responsibility, the power balance may be even more uneven, as also can be reflected in the nature of the proceedings on the domestic level (which can be more of an administrative law nature).

3.2.1. Fair balance between the interests of the individual and of the community as a whole

In the previous section, it was explained that in cases relating to one’s surroundings it is relatively easy to distinguish a harmful activity or omission to act by the State. In other words, although a private actor might be directly responsible for the alleged harmful activity, this activity often depends on, or is legitimised by, domestic regulation. This shared or combined responsibility may explain why, in cases related to one’s surroundings, the Court usually examines whether a fair balance was struck between the competing interests of the individual and of the community as a whole, taking account of the margin of appreciation that must be granted to the States. ⁶⁵ For example, in Hatton and Others, the Court examined whether a fair balance was struck between the competing interests of, on the one hand, the individuals affected by the noise of airplanes taking-off and landing during the night and, on the other hand, the community as a whole, in particular the economic interest of the country. ⁶⁶ In Moreno Gómez, the Court examined whether the domestic authorities had struck a fair balance between the need to protect the applicant’s Convention rights and the need to serve the general interest. ⁶⁷ In both cases it was not the State, but private actors who were the direct source of the noise disturbances complained of. The activities and interests of these private actors as such did not, however, play a role in the Court’s proceedings. Indeed, in Hatton and Others, one of the companies responsible for operating and controlling the aircrafts causing the noise disturbance (British Airways) even primarily referred to general interests instead of specific interests of its own in its third-party submissions. The company submitted that ‘night flights at Heathrow play a vital role in the United Kingdom’s transport infrastructure, and contribute significantly to the productivity of the United Kingdom economy and the living standards of United Kingdom citizens’. ⁶⁸ Hence, the airplane company argued that ‘the loss of night flights would cause significant damage to the United Kingdom economy’. ⁶⁹ By referring primarily to general or public interests, the submission by British Airways might suggest that British Airways already translated its own interests into a more general interest, allowing them to be acknowledged by the Court.

3.2.2. Fair balance between the rights and interests of two private actors

In addition to examining whether a fair balance was struck between the competing interests of one individual and of the community as a whole, the Court may approach verticalised cases by examining whether a fair balance was struck between the competing rights and interests of two private actors, that is, the applicant and the private actor involved in the conflict at the domestic level. The Court takes this approach in verticalised cases involving a conflict between the right to reputation and private life and the right to freedom of expression, in verticalised cases about access to information about one’s origin, and in verticalised cases involving employer – employee relations.

For example, in Section 2.4, it was explained that, in cases involving a conflict between the right to reputation and private live and the right to freedom of expression, the Court has required Convention States to strike a fair balance between these two competing rights. In principle, this means that the Court examines whether the domestic courts balanced the right to reputation and private life and the right to freedom of expression in conformity with the standards laid down by the Court. ⁷⁰ However, there are also cases in which the Court takes a more substantive approach by redoing the balancing exercise carried out by the domestic authorities, meaning that it takes an independent stance of its own as to where the balance should be struck. ⁷¹ This is important in relation to the notion of verticalised cases, because some of the standards identified and listed by the Court as relevant for the balancing exercise may relate directly to the acts and interests of the private actor involved in the conflict at the domestic level. For example, in cases in which Article 8 is invoked, the Court can pay attention to the question of whether the journalist, who, on the domestic level, violated someone’s reputation, acted in good faith and properly verified the facts. To illustrate, in Ageyevy, ⁷² the Court held that

[e]ven though nothing in the case-file suggests that the journalists responsible for the material were not acting in ‘good faith’, they obviously failed to take the necessary steps to report the incident in an objective and rigorous manner, trying instead either to exaggerate or oversimplify the underlying reality. ⁷³

In cases on access to information about one’s origin and in employer – employee cases the Court may go a step further by expressly taking account of the interests of the private actor not involved in the Court’s proceedings when examining whether the domestic courts struck a fair balance between the right and interests of two private actors. In cases on access to information about one’s origin, the Court can examine whether the domestic courts struck a fair balance between the rights and the interests of the individual seeking information about his or her origin and the rights and interests of the (presumed) mother or father. In doing so, the Court clearly takes into account the rights and interests of the individual not involved in the Court’s proceedings. For example, in Mikulić the Court acknowledged the vital interest of the applicant in receiving the information necessary to uncover the truth about an important aspect of her personal identity, but at the same time it held that ‘…it must be born in mind that the protection of third persons may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing’. ⁷⁶ More generally, in access to information about one’s origin cases the Court has held that

a putative father’s interest in being protected from allegations concerning circumstances that date back many years cannot be denied […] in addition […] other interests may come into play, such as those of third parties – principally those of the putative father’s family…. ⁷⁷

In employer – employee cases the Court takes an approach that is similar to that in cases on access to information about one’s origin. For example, in Eweida and Others, the Court held in relation to Ms Eweida’s application that

[o]n the other side of the scale was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and could not have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. ⁸¹

3.2.3. Conclusion

It has been shown in the above that not only do verticalised cases have different characteristics, but the Court’s approach to them differs as well. The Court approaches verticalised cases by examining whether a fair balance was struck between the individual interests and the interests of the community as a whole or between the rights and interests of two private actors. Furthermore, there are differences with regard to the extent to which the Court takes into account the rights and interests of the private actor that was involved in the conflict at the domestic level, but that does not play a formal role in the Court’s proceedings. In some cases, the Court pays little attention to the interests of that private party (although it may scrutinise the acts of this private actor), whereas in other cases the Court clearly takes account of the rights and interests of the party that is not involved in the proceedings before it. Finally, if the Court clearly takes account of the rights and interests of the party not involved in the proceedings before it, differences exist with regard to what is actually taken into account by the Court. In some cases, rights of the individual not involved in the Court’s proceedings are mainly taken into account, whereas in other cases it is primarily interests that are taken into account.