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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 14 July 2016

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2016 - week 28


Latvian courts struck a fair balance in their decisions on musical copyright case - case of SIA AKKA/LAA v. Latvia - no violation of Article 1 of Protocol No. 1 ECHR (protection of property) - The case concerned a complaint about the restriction on the copyright of authors’ musical work. SIA AKKA/LAA, an organisation responsible for managing the copyright of the musical works of a large number of Latvian and international authors, complained about decisions by the national courts ordering the applicant organisation and two radio companies to enter into a licence agreement and to set an equitable royalty rate. The applicant organisation notably alleged that those decisions had restricted the exclusive rights of the authors they represented to freely conclude licence agreements for the use of their musical works. The Court found in particular that the Latvian authorities had struck a fair balance between the demands of the public interest (namely, the radio companies’ interest in obtaining a licence allowing them to legally broadcast work as well as the general public’s interest in having access to musical works), on the one hand, and the rights of the applicant organisation to obtain equitable remuneration from the use of musical work, on the other. Indeed, the effort to maintain a balance between the competing interests could be seen in their decisions, which had observed that protected works were being broadcast without a valid licence over an extended period of time and that that situation had to a certain extent been due to the applicant organisation’s limited efficiency in carrying out negotiations with the radio companies.

"74. The Court reiterates that whether a case is analysed in terms of the positive duty of the State or in terms of interference by a public authority which needs to be justified under Article 1 of Protocol No. 1 of the Convention, the criteria to be applied do not differ in substance: in both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. It also holds true that the aims mentioned in that provision may be of some relevance in assessing whether a balance between the demands of the public interest involved and the applicant’s fundamental right of property has been struck. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Broniowski v. Poland [GC], no. 31443/96, § 144, ECHR 2004-V). The Court observes that the applicant organisation in substance considered that the State’s actions, through the decision of the domestic courts, had constituted an unjustified interference, whereas the Government contended that by adopting the contested decisions the State had carried out its positive obligations as enshrined by international and domestic copyright agreements and legislation.
75. As observed before, by virtue of the Berne Convention and the domestic law as interpreted and applied by the domestic courts, where no agreement between the parties had been reached and were no other authority had decided on this issue, it was for the courts to set an equitable royalty rate (see paragraph 64 above).
76. In order to assess whether the above mechanism in the particular case provided safeguards so as to ensure that the functioning of the copyright protection system and its impact were neither arbitrary nor unforeseeable, the Court takes into account the following elements.
77. Firstly, before laying down the royalty rate, the domestic courts endeavored to provide the parties with time to reach an agreement during the court proceedings. Since it was not possible, the domestic court relied on the fact that in the first set of proceedings the parties had already reached an agreement on the method for calculation of the royalty rate (see paragraph 14 above). In the second set of proceedings the domestic court referred to the method used in other valid licence agreements concluded between the applicant organisation and other broadcasters, and the rate set by the courts was not considerably lower than the rate negotiated by the parties in their previous licence agreement (see paragraph 18 above).
78. Secondly, observing the interests of the copyright holders, the national courts had established that in the circumstances where the parties in principle were willing to enter into an agreement, banning the broadcast of the music would not suit the best interests of copyright holders, that is to say to receive the maximum benefit from the oeuvres.
79. Thirdly, as far as the courts’ orders for the parties to enter into a licence agreement was concerned, the measure was limited in scope and time. In the first set of proceedings the royalty rate was set for a period of three years, which had already been agreed by the parties. Whereas in the second set of proceedings the domestic court took note of the scope of the claim and the counterclaim and imposed on the parties merely a general obligation to conclude a licence agreement. Accordingly, the parties were not prevented from renegotiating the rate (contrary to, for example, Anthony Aquilina v. Malta, no. 3851/12, 11 December 2014, which concerned restrictions on fixing a rent over an extended period of time). It follows that the authorities had minimally restricted the right of the applicant organisation to renegotiate terms and conditions with the defendants and other broadcasting companies.
80. The foregoing considerations are sufficient to enable the Court to conclude that the Latvian authorities did strike a fair balance between the demands of the general interest and the rights of the applicant organisation.
81. There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention."
Life prisoner was not entitled to a more lenient sentence due to a gap in legislation - case of Ruban v. Ukraine - no violation of Article 7 ECHR (no punishment without law) - The case concerned entitlement to a more favourable sentence due to a gap in legislation. Mr Ruban – serving a life sentence for aggravated murder – alleged that, had he been sentenced during the three-month gap between the time when the death penalty had been abolished in Ukraine and life imprisonment had not yet been introduced, the courts would have had no choice but to sentence him to a maximum of 15 years’ imprisonment. The Court stressed the importance of taking into account what the intention of the legislator was and, in particular, whether it was to humanise the criminal law and to give retrospective effect to more lenient law. In the Court’s view the creation of the three-month gap – between the abolition of the death penalty and its replacement with life imprisonment – had not been intentional. In any case, in Mr Ruban’s case, Parliament had replaced the death penalty with a life sentence, and the courts had therefore in fact applied the more lenient form of punishment.

DISSENTING OPINION OF JUDGE HAJIYEV
"I respectfully disagree with the majority that there has been no violation of Article 7 of the Convention.

The reason for my disagreement is my understanding of the fundamental principle concerning application of the criminal law in time and space, which is similar in most legal systems.

Thus, as can be seen from the facts of the present case, the decision of the Ukrainian Constitutional Court to abolish the death penalty as a punishment under the criminal law of the country was not, unfortunately, accompanied by an indication that this decision would take effect at the same time as the legislative amendments made pursuant to a decision of the Ukrainian Parliament concerning the question.
The resulting gap of almost three months created a situation in which the most severe penalty existing in the criminal law of the country was fifteen years’ imprisonment.
In my opinion, it was a reasonable submission on the part of the applicant that in the absence of the death penalty during the transitional period and before introduction of the life imprisonment the national courts had to apply to his case the only punishment existing under the relevant provision, which was fifteen years’ imprisonment.
The applicant’s position is based on a general principle of criminal law, according to which interim law providing for a more lenient penalty shall be applied unconditionally. This clear principle has been violated in the present case and I have therefore decided to disagree with the majority."
Texts are based on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.  

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