The European Convention on Human Rights Flashcards

1
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The Structure and aim of the council of Europe- The Aim of the Council

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The aim of the Council of Europe was, and remains, ‘to achieve a greater unity between its Member for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress, and this aim was to be pursued ‘through the organs of the Council by discussion of questions of scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.’ The current political mandate of the Council of Europe was established at a summit which took place in Warsaw in 2005. The agenda is ‘to protect human rights, pluralist democracy, and the rule of law; to promote awareness and encourage the development of Europe’s cultural identity and diversity; to find common solutions to challenges facing European society: such as discrimination against minorities, xenophobia, intolerance, terrorism, trafficking in human beings, organised crime and corruption, cybercrime and violence against children. Moreover, to also consolidate democratic stability in Europe by backing political legislative and constitutional reform.

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2
Q

Explain the three Organs which the Council operates through?

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The Council operates through three organs. The decision-making body is the Committee of Ministers composed of the foreign ministers of the Contracting Parties. The Parliamentary Assembly, composed of 318 representatives drawn from the national parliaments, is the deliberative body whose debates can lead to recommendations made to the Committee of Ministers. The third organ was added in 1994 and is the Congress of Local and Regional Authorities of Europe, which has consultative functions and is composed of representatives of local and regional authorities. The work of these organs is supported by a Secretariat, headed by a Secretary-General appointed by the Parliamentary Assembly on the recommendation of the Committee of Ministers.

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3
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The Right To Life- Article2

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Article 2(2) of the Human Rights to life provides that “Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Article 2 (2) states that “Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained and (c) in action lawfully taken for the purpose of quelling a riot or insurrection

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4
Q

The Right To Life- The Strasbourg Court & McCann Case

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The right to life provides that the taking of a life should be refrained unless this occurs in the narrowly prescribed circumstances recognised in Article 2(2). The Strasbourg Court observed in the McCann case that: as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention, as such, its provisions must be strictly construed. In the case ‘Osman v United Kingdom’, Osman appealed to the European Court of Human Rights contending that the blanket immunity from actions provided to the police by the House of Lords in Hill v CC Yorkshire was in breach of Art 6 of the European Convention of Human Rights. Art 6 provides that in determination of civil rights every person is entitled to a hearing by an independent and impartial tribunal established by law. The Court found there had been a violation of Art 6 .The blanket immunity provided by Hill v. CC Yorkshire constituted a disproportionate restriction on the applicant’s right of access to a court or tribunal. The substantive merits of the case could not be argued before a judge. It should always be open for claimants to put their case before a judge and a blanket rule which interfered with this right was not acceptable. The restrictive requirements of proximity were adequate to protect the police from the majority of claims.

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5
Q

The Right To Life: LCB vs. United Kingdom

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Regarding the case of ‘LCB vs. United Kingdom’, the UK conducted a series of nuclear tests on Christmas Island in 1958 and 1959, where the applicant’s father served as a service member at the time. The Service members were ordered to line up, face away from the explosion, and close and cover their eyes. The applicant’s daughter was born in 1970 with leukaemia, a form of cancer. 
In December 1992 the applicant became aware of the contents of a report prepared by the British Nuclear Tests Veterans’ Association, indicating a high incidence of cancers including leukaemia in the children of Christmas Island Veterans.
Procedure: The case was referred to the Court by European Commission on Human Rights, on 22nd of January 1997. It was lodged with the Commission under article 25. The Commission’s request referred to articles 44 and 48, and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court. The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent state of its obligations under article 2 and 3 of the Convention. The questions facing the Court, was whether or not there had been a breach of the Conventions articles 2, 3, 8 and 13, in particular whether the applicants leukaemia is likely to originate from her fathers exposure to radioactivity, and whether the State of Great Britain can be held responsible for alleged breaches which occurred prior to 14th of January 1966, when the UK recognised the competence of the Commission to receive individual petitions, and the jurisdiction of the court. 
The Court recalled that these complaints were not raised before the Commission. It therefore had no jurisdiction to consider them. The Court observed that, in principles, it would be open to it to consider in relation to Article 8, the applicant’s complaint regarding the State’s failure to its own motion to advise her parents and monitor her health prior to her diagnosis with leukaemia. However, having examined this question from the standpoint of article 2, it does not consider it any relevant separate issue could arise under article 8, and it therefore finds it unnecessary to examine further this complaint. 
In relations to the applicant’s complaint under Article 2, the right to life, the Court observed that, in accordance with the evidence presented before it, there were no link between the exposure of a father to radiation and leukaemia in a child subsequently conceived. Therefore there were no reason to assume that the United Kingdom could, or should, have taken action in respect of the applicant.

The applicant’s complaint under Article 3 was not found to have been violated by the United Kingdom. The Court reasoned by using the same arguments as it did with the complaint under Article 2. The Court ruled to have no jurisdiction to address Articles 8 and 13. The Court found it unnecessary to consider Article 8 since it already had considered Article 2. The Court didn’t see any relevant separate issues under Article 8 that needed to be addressed. The complaint under Article 13 was not brought before the Commission and subsequently the Court has no jurisdiction to address it. The scope of the jurisdiction of the Court is determined by the Commission’s 
decision on admissibility, and has no power to entertain new and separate complaints not raised before the Commission. 

Therefore, the Court held that it had no jurisdiction to consider complaints from the applicant that were not mentioned before the Commission since the Court has no power to hear new and separate complaints. United Kingdom has not violated article 2 and article 3 as alleged by the applicant. Furthermore, the Court has no jurisdiction to address violations of articles 8 and 13.
 A judgment by the European Court of Human Rights is legally binding and thus valid.

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6
Q

The Right To Life: THE DEATH PENALTY AND THE EXTRATERRITORIAL APPLICATION OF THE RIGHT TO LIFE

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Article 6 of the Convention abolishes the death penalty in peacetime and Protocol 13 abolishes it in all circumstances. Forty-six Contracting Parties have ratified Protocol 6 and 43 Contracting Parties have ratified Protocol 13. It is the policy of the Council of Europe to require all new Contracting Parties to undertake to abolish capital punishment in peacetime as a condition of their admission into the organisation. In the case of ‘Ocalan’, the Grand Chamber first Speculated whether the fact that almost all the Contracting States at the time had ratified Protocol 6 and 43 out of the 44 of them had abolished capital punishment, could be taken as signalling their agreement to modify the second sentence of Article 2(1). In that case it found it unnecessary finally to resolve the point after an unfair trial. However, in Al-Saadoon and Mufdhi v United Kingdom a Chamber of the Court suggested that the second sentence of Article 2 had been amended by state practice: ‘All but two of the Member States have now signed Protocol 13 and all but three of the States which have signed have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of the Article 1 continues ti txt as a bar to its interpreting the words ‘inhuman or degrading treatment or punishment’ in Article 3 as including the death penalty. In this case, the Court also declared that, for States bound by the absolute prohibition of the death penalty in all circumstances in Protocol 13, that principle can be regarded as enshrining one the basic values of the democratic societies making up the Council of Europe and therefore, its probations will be strictly construed. Despite the removal of the death penalty from the European landscape, it remains a potentially live issue before the Court due to possibility of extradition to States outside Europe where the penalty is retained. If a Contracting Party which has ratified Protocol 6 wishes ti extradite an accused to a country where he or she would face judicial execution there will be a risk of a violation of the Protocol, and it may be necessary for the sending applied before the extradition can go ahead.

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7
Q

The Right To Life: Prohibition of intentional killing by the state- ‘No one shall be deprived of his life intentionally. McCann Case

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The first and most obvious element of a Contracting Party’s obligation under Article 2 is to refrain,through its agents, from deliberate, unjustified killing. This aspect was considered by the Strasbourg Court in the McCann case, which was brought by the relatives of three Irish Republican terrorists who had been killed by members of the British security forces in Gibraltar. It was not disputed that the soldiers had intended to shoot and kill the terrorists; according to the briefing which the soldiers had bee given, the terrorists had planted a car bomb in a crowded areas and were likely to have been carrying a concealed detonator at the time of the shooting. The respondent State claimed that the facts fell within the ambit of paragraph 2(a) of Article 2: killings resulting from the use of force which was no more than absolutely necessary to defend a number of innocent bystanders from unlawful violence. The Court held that the use had to be strictly proportionate to the achievement of one of the aims set out in sub-paragraphs 2(a) to (c). Given this strict test, it was not sufficient for the person administering the force honestly to believe that his or her actions were valid; this belief had also to be based on ‘good reasons’ in the light of the information available at the relevant time. The Court accepted that the soldiers were not to blame, and that they honestly and reasonably believed that it was necessary to shoot the suspects to prevent them from detonating a bomb. However, the Court widened the field of scrutiny to look at the security operation in its entirety. The identities of the three members of terrorists squad were known to the British authorities, and it would have been possible to arrest them as they entered Gibraltar, before there was any risk of their having set a car bomb. Looking at all the facts, therefore, the Court concluded that it has not been necessary to use lethal force and that the killings amounted to a violation of Article 2.

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8
Q

The Right To Life: Prohibition of intentional killing by the state- The planning of an operation, Finogenov and others v Russia & Gul v Turkey

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The planning of an operation was crucial in the case Finogenov and others v Russia, concerning events during the hostage crisis in Moscow on 23-26th of October 2002 in which a group of terrorists belonging to the Chenchen separatist movement, armed with machine-guns and explosives, took hostages in the Dubrovka theatre. The applicants alleged that the Russian authorities had applied excessive force, which had resulted in the death of their relatives who were being held hostage by the the terrorists. The applicants further claimed that the authorities had failed to plan and conduct the rescue operation in such a way as to minimise the risks for the hostages. The Court chose to apply different degrees of scrutiny to different aspects of the situation. As the hostage-taking itself came as a surprise for the authorities, the military preparations for the storming had to be made quickly and in secrecy and the authorities were not in control of the situation inside the building. In such a situation the Court accepted that ‘difficult and agonising decisions had to be made by the domestic authorities and was prepared to grant them a margin of appreciation, at least in so far as the military and technical aspects of the situation are concerned, even if now, with hindsight, some of the decisions taken by the authorities may appear open to doubt. In contrast, the subsequent phases of the operation , especially when no serious time constraints existed and the authorities were in control of the situation, required closer scrutiny by the Court. The Court concluded that there existed a real, serious, and immediate risk of mass human losses and that therefore the authorities’ decision to storm the building could be justified under Article 2(2). While the Court is tolerant of honest mistakes, based on good reasons, as to the level of face absolutely necessary in particular circumstances, it is far less likely that an honest mistake as to the very existence of a threat will be regarded as justifying a killing by the State agents. This can be demonstrated by Gul v Turkey, where the police officers opened fire at an unknown target behind a closed door in a residential apartment. While it was possible that the officers had mistaken the sound of the door bolt being drawn back for the sound of the occupant of the flat opening fire at them, their reaction was held to be grossly disproportionate. The Court unanimously found a violation of Article 2 in that case and distinguished it from the earlier case of Andronicou and Constantinou v Cyprus.

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9
Q

The Right To Life: Death in custody and forced disappearance

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The protection afforded by Article 2 would be of no value if a State could avoid international sanction by concealing the evidence of killings caused by its agents. Where an individual is known to have been taken into custody and subsequently disappears or is found dead, therefore, it is logical that a heavy burden should fall on the State to establish an innocent explanation. According to amnesty International, following an analysis of the relevant international instruments, the crime of disappearances has the following elements: (1) a deprivation of liberty, (2) effected by government agents or with their consent, followed by (3) an absence of information or refusal to acknowledge the deprivation of liberty or refusal to disclose the fate or whereabouts of the person, (4) thereby placing such persons outside the protection of the law. The Inter-American Court of Human Rights has held that the phenomenon of disappearances is a complex form of human rights violation, including breaches of the right to life and the right not to be subjected to ill-treatment, that must be understood and confronted in an integral fashion. The gravity of the violations of rights attendant on a disappearance has led the United Nations Human Rights Committee to conclude in relation to Article 6 of the International Covenant on Civil and Political Rights that State Parties should take specific and effective measures to prevent them occurring an thoroughly to investigate any case of a missing or disappeared person which may involve a violation of the right to life. It is arguable that the Strasbourg organs were disappointingly timid in their treatment of the first case of a disappearance to come before them. The Commission and Court both accepted that it had been provoked beyond reasonable doubt that the applicant’s son has last been seen some four and a half years earlier surrounded by soldiers during a security operation in his village in south-east Turkey. The Court moreover, conceded that in these circumstances the applicant’s fears that her son might have died in unacknowledged custody and the hands of his captors could not be said to be without foundation. Nonetheless, it declined to find a breach of Article 2 in the absence of concrete evidence that the young man has been killed by the authorities. Instead, it opted for a particularly grace violation of the right to liberty and security of person under Article 5 raising serious concerns about the welfare of the applicant’s son.

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10
Q

The Right To Life: Death in custody and forced disappearance- Salmon (2002)
& Mizigarova v Slovakia (2010)

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The Strasbourg Court acknowledged the risk inherent in relying for proof almost entirely on a photocopy. However, it held that the respondent State’s failure, without satisfactory explanation, to disclose evidence which it claimed to hold gave rise to an inference that the photocopied report was genuine, and that the applicant’s son had been arrested. The Court next considered whether, in the absence of a body, any issue could arise under Article 2, concluding that this would depend on all the facts of the case, in particular whether there was sufficient circumstantial evidence pointing towards death in custody. In this respect the length of time which had elapsed since the person had been placed in detention, although not decisive, was highly relevant, since the person had been placed in without any news, the greater was the likelihood that he had died. Given that more than six and a half years had gone by since the applicant’s son had been arrested and that the respondent State was unable to provide any explanation of what happened to him, the Court found a violation of Article2. The same principle applies where there is clear evidence of a death in custody. In the Salman case, the applicant’s husbands was arrested at midnight on on the suspicion of aiding and abetting Kurdish terrorists. Twenty-four hours later he was taken to the State Hospital where he was declared dead on arrival. The hospital autopsy disclosed various marks and bruises, including a broken sternum, but did not determine the cause of death. The case was referred to the Instabul Forensic Institute which concluded that the applicant’s husbands had died of a heart attack brought on by the effect of his arrest on a pre-existing heart condition. The applicant claimed that photographer of the corpse taken by the family showed that her husband had been beaten on the soles of his feet. Ten police adducers were acquitted of homicide by the Adana Aggravated Felony Court on the basis that there was inadequate evidence of any use of torture. The Strasbourg Court observed the Contracting Party to provide a satisfactory account was particularly stringent. Since the respondent State was unable to explain how the applicant’s husband had come by his injuries and since the evidence did not support the contention that he had died of a heart attack caused by the stress of arrest, the Court found the respondent State to have violated Article 2. In the case ‘Mizigarova v Slovakia 2010, the applicant’s husband died after receiving a fatal gunshot wound while in police custody. The parties disputed whether this was fired by he armed police officer who was interrogating the suspect or was the result of suicide, but the Court took the new that whichever possibility was correct, the State had failed in its Article 2 obligations.

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11
Q

The Right To Life: Positive Obligation To Protect Life- States have to take positive steps to safeguard the lives of those in its jurisdiction

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In the LCB case, the Strasbourg Court recognised for the first time that the first sentence of Article 2(1) enjoins a Contracting Party not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within their jurisdiction. This was an important statement of principle, despite the fact that the applicant was unable to prove either that her father’s service in the Royal Air Force during the United Kingdom ‘s nuclear tests on Christmas Island in 1957 to 1958 had been the cause of her childhood leukaemia or that, has the respondent State provided her family with more information about the tests and the possible health consequences, earlier medical intervention would have mitigated her illness. More recent cases have demonstrated that the States duty to safeguard life is extensive. In the ‘Oneryildiz’ case, the Grand Chamber went so far as to hold (that this obligation to take appropriate steps to safeguard the lives of those within the States jurisdiction) must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake. The obligation entails, at its most basic, a duty to put in place a legislative and administrative framework designed to provide effective deterrence against unlawful killing. Thus, Turkey was a fault in cases involving the murder of a journalist working for a Kurdish separatist newspaper and doctor known to have treated members of the Kurdish terrorist organisation, the PKK. In both cases the applicants alleged that their brothers had been assassinated by members of the Sate security forces, but this could not be proved. The Strasbourg Court did ,however, find that the authorities were aware that journalists, doctors and others associated with the PKK and Kurdish separatism had been the object of a campaign of serious attacks and threats, possibly emanating from or carried out with the acquiescence of the security forces. Although there was a framework of law in place aimed at the protection of life at the relevant time implementation of the criminal justice system in south-east Turkey was seriously undermined by various Emergency Rule measures. This situation fostered a dangerous lack of accountability among members of the security forces and removed the protection which the applicant’s brothers should have received by law.

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12
Q

The Right To Life: Positive Obligation To Protect Life- Osman v UK (1998)

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In the case Osman v UK 1998, the applicant’s family had become the target of a dangerous stalker, who eventually broke into their home and shot and killed their husband and father. Bearing in mind the difficulties in policing modern society, the unpredictability of human conduct, and the need for the police to act within the confines imposed on them by, inter alia, Article 5s 5 and 8 of the Convention, the Strasbourg Court defined this particular aspect of the duty to protect life rather narrowly. It considered that the authorities could be said to be in breach of Article 2 in this context only if it could be established that they knew or ought to have known at the relevant time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party, and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. In the instant case, the applicants were not able to point to any decisive stage in the sequence of events leading to the shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk, and the police could not be criticised for attaching weight to the presumption of innocence and the rights of the stalker in the absences of any concrete evidence against him. By contrast, Opuz v Turkey, a violation of Article 2’s positive obligation was identified. In this case, the applicant alleged that the Turkish authorities had failed to protect her and her mother from domestic violence which had resulted in the death of her mother. The victim’s situations were known to the authorities and the mother had submitted a petition to the Chief Public Prosecutor’s Office, stating that her life was in immediate danger and requesting the police to take action. The authorities’ only response was to take statements from the perpetrator about the allegations. Two weeks later he killed the applicant’s mother. The Court found that the authorities could have foreseen a lethal attack and this their responsibility to take reasonable steps to mitigate the harm was engaged. The Government claimed that any further interference by the authorities would have amounted to a breach of the victim’s Article 8 rights The Court was very dismissive of this argument, reiterating that sometimes interference with private or family life of individuals might be necessary in order to protect the health and rights of others or to prevent commission of criminal acts. In particular, the Court underlined that in domestic violence cases perpetrators rights cannot supersede victims human rights to life and to physical and mental integrity. The Court also reiterated that once the situation had been brought to their attention, the national authorities cannot rely on the victim’s attitude foe their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim. The Turkish authorities were donut to have failed in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2.

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13
Q

The Right To Life: Positive Obligation To Protect Life- Prisoners are in a vulnerable position and authorities are under a duty to protect them, Keenan v UK 2001

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In the Keenan v UK 2001 case, the risk to life came from the victim himself, a young man with mental health problems who committed suicide in prison. The Strasbourg Court emphasised that prisoners are in a vulnerable position and that the authorities are under a duty to protect them, and noted that this necessity is reflected in English law, where inquests are automatically half following all deaths in custody. In Keenan’s case, the prison administration had acted reasonably to protect him from himself. They knew that he was prone to psychotic flare-ups, and during the periods when he appeared to be suicidal, they had placed him on the hospital wing and checked him every fifteen minutes .On the days when he killed himself, he had been returned to an ordinary cell because he did not appear to be in any particular trouble. In Reynolds v United Kingdom, the Court accepted there was an arguable claim under Article 2 where the applicant’s son who had a history of schizophrenia, committed suicide after being assessed as a law suicide risk and transferred to a sixth floor psychiatric unit from where he broke a window and fell to his death. The Court accepted that there was arguable claim that an operational duty had arisen to take reasonable steps to protect the applicant’s son from a real and immediate risk of suicide and that, that duty was not fulfilled. Domestic case-law at the time in the UK drew a distinction between detained and voluntary mental patients, since removed by a Supreme Court decision. The Court’s finding of a violation in this case casts doubts upon the acceptability of such a distinction and yet its removal carries a State duty to prevent suicide beyond the ambit of persons within the control of the State and arguably risks extending a duty to prevent suicide to an arena in which it may conflict with duties under Article 8 to respect autonomous decisions about death.

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14
Q

The Right To Life: The Duty To Investigate Suspicious Deaths

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In the McCann case, the Strasbourg Court observed that any general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice in the absence of a procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protects the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State. In the Ramshai case, the Grand Chamber recapitulated the requirements. The requirement for an effective investigation has formed a useful part of Strasbourg Court’s artillery, particularly in cases where the evidence is not sufficiently clear to justify a finding of deliberate killing by the State. In the Kata case, for example, the applicant’s brother was found lying dead and riddled with bullets in a field near his village in south-east Turkey. The respondent State claimed that he was a terrorist who had been killed during a battle with security forces. Witnesses from the village allegedly said that he was an ordinary, unarmed farmer who had been shot by the soldiers without justification or provocation. Only a rudimentary post-mortem had been performed before the body was handed over for burial to the villagers, and the public prosecutor who subsequently took over the inquiry appeared to have accepted without question the military’s version of events, omitting to take statements from witnesses or collect any forensic evidence. In these circumstances the Commission and Court, examining the case some years later and hampered y the reluctance of witnesses to come forward,were unable to establish clearly what had taken place or to find for the applicant on his complaint that his brother had been deliberately killed by the soldiers. The Strasbourg Court did, however, find a breach of Article 2 on the basis that the domestic investigation into the death had been inadequate. The Court has explained that the essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. however, whatever mode is employed, the authorities must act of their own motion, once the matter had come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or total responsibility for the conduct of any investigation procedures. The procedural aspect of Article 2 can, in this way, be distinguished from the obligation under Article 13 to provide an effective remedy. Article 2 appears to be most concerned with an official investigation leading to the establishment of criminal liability, whereas the focus of Article 13 is the provision of a civil remedy to the victim or his or her relatives, to enable them to seek compensation.

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15
Q

The Right To Life: The Duty To Investigate Suspicious Deaths, Four Requirements

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In a number of cases, the Court has concluded that the combination of these factors has rendered the criminal investigations ineffective. In Aslakhanova and others v Russia, the Court held that the situation must be characterised as resulting from systemic problems at the national level, for which there is no effective domestic remedy. It affects core human righthand requires the prompt implementation of comprehensive and complex measures. The Court therefore provided some guidance on measures to be taken, as a matter of urgency, by the Russian authorities to address the issue of the systemic failure to investigate disappearances in the Northern Caucasus. For an investigation into alleged unlawful killing by the State agents to be effective and to comply with Article 2, it must be carried out by someone who is fully independent of those implicated in the events on the basis of objective evidence. The investigation must be capable of leading to a determination of whether the force used in such cases was justified in the circumstances and to the identification and punishment of those responsible. This entails that the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including eyewitness testimony, forensic evidence and were appropriate , an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. In Mikayil Mammadov v Azerbaijan, the investigation into a suicide was undermined by the authorities’ failure to question the suicide victim before her death in hospital even though they were aware that she had suffered life-threatening injuries which made her survival uncertain. The Court took the view that in these circumstances, the authorities were obliged to act in a promo and diligent manner in order to try to brain evidence which would no longer be available after her death and had failed to do this. The investigation must be carried to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts. For the same reasons, the investigation must, to a certain degree, be open to the public scrutiny, and the relatives of the deceased must aways have the opportunity to become involved.

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16
Q

The Right To Life: EUTHANASIA AND THE QUALITY OF LIFE, Pretty v UK 2002

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The right to life in Article 2 does not include the ‘right to die’. In the case Pretty v UK 2002, the applicant suffered from an untreatable motor-neurone disease. Her muscles were becoming progressively weaker, so that at the time of the application she was paralysed from the neck down, had virtually no decipherable speech, and had to be fed through a tube, although her intellect and capacity to make decisions were unimpaired. Her life expectancy was very poor, and the final stages of the disease were expected to be distressing and undignified. She wished her husband to be permitted o asset her suicIde without risk of prosecution. The Strasbourg Court observed that the consistent emphasis in its case-law had been the obligation of the Sate to protect life. Article 2 was unconcerned with issues to do with the quality of life or self-determination. The four Member States of the Council of Europe which allow medical practitioners to prescribe lethal drugs, subject to specific safeguards, are Switzerland, Belgium, the Netherlands and Luxembourg. However, there have not, to date, been any admissible cases under Article 2 brought by a friend or relative complaining about euthanasia carried out by a doctor or authorised by a Contracting Party, although there have been cases brought under Article 8 challenging a State’s failure to permit assisted dying. The application in the pretty case argued that a failure to acknowledge a right to die under the Convention would case such countries which do permit assisted suicide in breach to the Convention. The Strasbourg Court refused to consider this proposition in the abstract, and remarked that, even if circumstances prevailing in a particular country which permitted assisted were found to infringe Article 2 of the Convention, that would not asset the applicant in establishing the very different proposition; that the United Kingdom would be in breach of its own obligations under Article 22 if it idd not allow assisted suicide.

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17
Q

Prohibition of torture: Article 3, No one shall be subjected to torture or to inhuman or degrading treatment or punishment

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Article 3 states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of was or public emergency. The Strasbourg Court has been consistent in its maintenance of the absolute nature concerning the threat from terrorism. This is well illustrated by the ‘Chahal’ case. The United Kingdom wished to deport Chahal to India, arguing that he has been involved in terrorist activities and posed a risk to national security of the United Kingdom. The Strasbourg Court said ‘Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violent. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.’ Despite attempts to persuade the Strasbourg Court that the interests of the community as a whole may be taken into account in deciding whether to remove a person whose counted presence might be seen to be a threat to the host country, the Grand Chamber in the ‘Saadi’ case has re-affirmed the absolute nature of the prohibition ‘as the prohibition to trout and inhuman and degrading treatment or punishment is absolute, irrespective of the victim’s conduct, the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3’. The Strasbourg Court described the argument based on the balancing of the risk of harm if the person is removed against their dangerousness to the host State as a ‘misconceived’. Nor was there any merit in the argument that the risk of ill-treatment should be stronger in those cases where the continued presence of the person in the host State presented a security risk; this was not compatible with the absolute nature of Article 3. But the assessment of the risk of ill-treatment in the country of destination will always be a rigorous one. The absolute nature of Article 3 was again underlined in the Gafgen case. Gafgen kidnapped the son of a German banker for a ransom. He was arrested, and unknown to the police, he had already killed the boy. The police officers in charge of the interrogation believed the boy’s life was in grave danger and made threats of violence against Gargen in order to extract information about where the boy was held. Gafgen told the police where the boy was and the police retrieved the boy’s body along with other evidence. Gafgen was convicted of the boy’s murder. The police officers were found guilty under German law of using coercion. They received a small fine. The Strasbourg Court recognised that the police acted in order to save the boy’s life but noted ‘it is necessary

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18
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Prohibition of Torture: Article 3, No one shall be subjected to torture or to inhuman or degrading treatment or punishment

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Article 3 states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of was or public emergency. The Strasbourg Court has been consistent in its maintenance of the absolute nature concerning the threat from terrorism. This is well illustrated by the ‘Chahal’ case. The United Kingdom wished to deport Chahal to India, arguing that he has been involved in terrorist activities and posed a risk to national security of the United Kingdom. The Strasbourg Court said ‘Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violent. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.’ Despite attempts to persuade the Strasbourg Court that the interests of the community as a whole may be taken into account in deciding whether to remove a person whose counted presence might be seen to be a threat to the host country, the Grand Chamber in the ‘Saadi’ case has re-affirmed the absolute nature of the prohibition ‘as the prohibition to trout and inhuman and degrading treatment or punishment is absolute, irrespective of the victim’s conduct, the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3’. The Strasbourg Court described the argument based on the balancing of the risk of harm if the person is removed against their dangerousness to the host State as a ‘misconceived’. Nor was there any merit in the argument that the risk of ill-treatment should be stronger in those cases where the continued presence of the person in the host State presented a security risk; this was not compatible with the absolute nature of Article 3. But the assessment of the risk of ill-treatment in the country of destination will always be a rigorous one. The absolute nature of Article 3 was again underlined in the Gafgen case. Gafgen kidnapped the son of a German banker for a ransom. He was arrested, and unknown to the police, he had already killed the boy. The police officers in charge of the interrogation believed the boy’s life was in grave danger and made threats of violence against Gargen in order to extract information about where the boy was held. Gafgen told the police where the boy was and the police retrieved the boy’s body along with other evidence. Gafgen was convicted of the boy’s murder. The police officers were found guilty under German law of using coercion. They received a small fine. The Strasbourg Court recognised that the police acted in order to save the boy’s life but noted ‘it is necessary to underline that, having regard to the provision of Article 3 and to its long-established case law, the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities.

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19
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Prohibition of Torture: Defining Torture, UN 1975 Declaration

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The United Nations General Assembly’s definition of torture in the 1975 Declaration states that ‘torture constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment.’ The UN Convention differentiates between torture and other forms of ill-treatment. Article 6 covers inhuman and degrading treatment not amounting to torture, where such acts are committed or instigated with the consent or acquiescence of a public official or a person acting in ann official capacity. This distinction has important consequences under the UN Convention as prohibitions of State action and the legal obligations placed on States are only applicable to torture under Article 1. In contrast , Article 3 of the European Convention on human Rights clearly prohibits all three forms of ill-treatment in the Article. However, a finding of torture may be relevant to the assessment of damages under Article 41 of the Convention as well as impacting on the admissibility of evidence under Article 6.

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20
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Prohibition of Torture: Distinction between torture and inhuman treatment, Ireland v United Kingdom 1978

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The distinction between torture and inhuman treatment is frequently one of the degree. In the case ‘Ireland v United Kingdom 1978’, the Strasbourg Court suggested that the following factors were relevant in determining the existence of inhuman treatment: the duration of the treatment, its physical or mental effects, and the sex, age, and state of health of the victim. In the Tyrer judgement, the Court said that the nature and context of the punishment itself, and the manner and method of its execution should be considered in determining whether a punishment constituted degrading treatment. The threshold of seriousness required and the need to consider the relative nature of the conduct in context indicate that the prohibition in Article 3 is not a static one, but receives a living interpretation and must be considered in the light of present-day circumstances. In Ireland v United Kingdom, the Irish Government alleged that persons in custody in Northern Ireland had been subjected to treatment which constituted torture and inhuman and degrading treatment and punishment within the meaning of Article 3 of the Convention and that such treatment constituted an administrative practice. In issue, in particular, were the five techniques for interrogating detained persons in depth, consisting of covering their heads with hoods, obliging them to stand for long periods against a wall with the libs out stretched, subjecting them to intense noise, depriving them of sleep, and feeding them on a diet of bread and water. After a committee of inquiry in the United Kingdom had looked into these techniques and consideration by Privy Counsellors, the Prime Minister announced in March 1972 that the interrogation techniques would be discontinued. The Commission’s Report of February 19976 concluded that the five techniques amounted to torture and inhuman treatment in breach of Article 3. The Irish Government referred the case to the Court which gave judgement in 1978. Rather to the surprise of many, it concluded that the five techniques did not amount to torture though they did constitute inhuman and degrading treatment. The case is especially important for its contribution to the case-law on the definition of the terms used in Article 3, but it contains many mixed signals. While the majority limited the finding to inhuman and degrading treatment, several judges in the minority concluded that the five techniques amounted to torture and the British judge concluded that they did not amount even to inhuman degrading treatment.

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21
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Prohibition of Torture: Defining Inhuman Treatment

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Inhuman treatment need not necessarily be deliberate and includes suffering that arises out of conditions of detention. All the circumstances of the case must be considered. The Strasbourg Court has repeatedly said: Treatment had been held by the Court to be ‘inhuman’ because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also ‘degrading’ because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and beading them. In order for a punishment or treatment associated with it to be ‘inhuman’ or ‘degrading’ the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3.

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22
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Prohibition of Torture: Defining Degrading Treatment

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It has sometimes ben said that degrading treatment requires the presence of gross humiliation before others or being driven to act against will or conscience. However, the Strasbourg Court has stated on several occasions that gross humiliation, as the purpose of the acts in issue, is not always a necessary ingredient of degrading treatment. Nor is intention to humiliate. But where humiliation or debasement in present, the threshold of severity would appear to require that the humiliation is severe. The process of investigation and discharge of homosexuals in the armed forces was found not to reach the requisite threshold in the Smith and Grady case. The Court, however, noted that it would not exclude the possibility that treatment ‘grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority’ could fall within the scope of Article 3. The Commission has considered that racial discrimination could constitute degrading treatment. In the ‘Marckx’ case, the Court ruled that legal rules discriminating against illegitimate children did not constitute degrading treatment within Article 3, though the case might be decided differently if the same situation arose today. In Cyprus v Turkey 2002, the Strasbourg Court found that Greek Cypriots living in the Karpas region of northern Cyprus had been subject to discriminatory treatment which attained a level of severity which amounted to a degrading treatment.

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23
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Prohibition of Torture: Destruction Of Homes And Possession

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In Bilgin v Turkey 2003, the Strasbourg Court found that destruction of the applicant’s house and his possession during operations by the security forces constituted inhuman treatment. The acts were deliberate and the operations of the security forces had been conducted with complete disregard for the safety and welfare of the applicant. In the ‘Moldovan’ case, the Court found that the involvement of State agents in the destruction of the homes of those of Roma origin coupled with failures of State agencies to prosecute those responsible and to manage the reconstruction of the destroyed homes effectively were motivated by racial discrimination. This constituted a serious violation of Article 8 of the Convention, which in turn constituted degrading treatment in breach of Article 3.

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24
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Prohibition of Torture: Corporeal Punishment

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The extent to which corporeal punishment constitutes conduct in breach of Article 3 has been considered by the Strasbourg Court in a number of cases. In the case Tyrer v UK 1978, concerning the imposition of the penalty of birching in the Isle of Man on a 15year old who had been convicted of assault on a senior pupil at his school. The punishment was administered by a police constable in private in the presence of the boy’s father and a doctor. In concluding that the punishment of Tyrer constituted degrading treatment, the Court had regard to its character as institutionalised violence, to the fact that the punishment constituted an assault one the applicant’s dignity and physical integrity, which may have had adverse psychological effects, and to the anguish of anticipating the punishment. The Campbell and Cosans v the United Kingdom 1982 case, concerned the use of corporeal punishment in schools. In one case, the parent was unable to obtain an assurance that her son would not be subject to corporeal punishment, and in the other the son, on his father’s advice, presented himself for punishment but refused to accept it and was immediately suspended from school until such time as he was willing to accept the punishment. The form of corporeal punishment in issue was the striking of the hand with a leather strap known as a ‘tease’. The Commission concluded tat there was no violation of Article 3 in these cases. The Court noted that neither child had been subjected to corporeal punishment. Nevertheless, ‘provided it is sufficiently real and immediate, a mere threat of conduct prohibited by Article 3 may itself be in conflict with the provision. The Court, however, concluded that the suffering resulting from the treatment of the two boys did not meet the level inherent in the notion of degrading treatment. The Court wit on to consider whether there provisions of the Convention had been violated.

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25
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Prohibition of Torture: Prison Conditions

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The ‘Peers v Greece 2001’, concerned conditions in a prison in Greece. There had been a critical report by the Committee for the the Prevention of Torture in relation to the prison in question. it seemed that little had been done to improve the conditions in the prison. The Strasbourg Court concluded that confinement in a cell with no ventilation and no window at the hottest time of the year in circumstances where the applicant had to use the toilet in the presence of another and was present while the toilet was being used by his cell mate diminished his human dignity and amounted to degrading treatment. The poor state of prison facilities in some Contracting Parties remains a cause for concern. In the ‘Kadikis’ case , the applicant complained that his cell, which had an area of six square metres, regularly held four or five people, it was poorly ventilated and had poor lighting; there were no exercise facilities; only one meal per day was provided; no drinking water was provided; there was no bedding or blankets; use of the toilet was restricted to three times a day and urgent needs were accommodated using a bottle and plastic down; and his family were allowed on only one occasion to provide him with items for personal hygiene and fresh clothing. The Strasbourg Court noted that the Committee for the Prevention of Torture had recommended a minimum of seven square metres of cell space per prisoner. The Court found these prison conditions to constitute degrading treatment in violation go Article 3. In extreme cases, poor prison conditions, combined with aggravating circumstances, such as a failure to respond to a prisoner’s mental health problems, could result in a finding that the overall prison regime constituted torture.

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26
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Prohibition of Torture: Medical Attention For Detainees

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The Strasbourg Court has consistently ruled that all prisoners are entitled to conditions of detention which are compatible with human dignity. This includes having appropriate regard for their well-being. Where mental health is in issue, Contracting Parties have been enjoined to take special account of the vulnerability of prisoners and their inability, in some cases, to complain coherently about their difficulties. Very special measures will need to be put in place where a prisoner constitutes a suicide risk. In one case the Court ordered interim measures in the form of a requirement that the applicant be transferred from hospital to prison, somewhat controversially, found a violation where a transfer to prison took place and a transfer back to hospital took place three days later. The absence of facilities within a prison to meet the needs of a wheelchair user was found to constitute degrading treatment even though it was accepted that there was no intention to humiliate or debase the prisoner. In the ‘ Price’ case, the conditions in which a thalidomide victim was kept in prison were found to amount to degrading treatment. The applicant had been committed to prison for seven days for contempt of court; she was detained both in a police call and in prison for three and a half days. She was seriously disabled by her condition, and used a wheelchair. The Court concluded that her detention in conditions where she was dangerously cold, risked developing sores because her bed was too hard or unreachable, and was unable to get to the toilet or keep clean without the greatest of difficulties amounted to degrading treatment. Furthermore, a complaint of a violation of Article 3 might arise from failure to respond promptly and effectively to a prisoner’s medical needs. The ‘Mousiel’ case concerned a prisoner suffering from leukaemia who had been sentenced to fifteen years imprisonment for armed robbery, kidnapping and fraud. He raised a complaint that his continued detention and the conditions in which he ha been detained violated Article 3. The Court acknowledged that a failure to provide appropriate medical treatment could bring the conduct of the authorities within the positive obligations of Article 3.

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27
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Prohibition of Torture: Positive Obligations

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The first requirement in positive obligations it that, there must be measures in the Contracting party constitutes effective deterrence and protection. This will involve the categorisation of many forms of conduct as criminal activity; this issue alone seldom troubles the Strasbourg Court. In the Okkali v Turkey, 2006 case, a 12 year-old boy had been beaten by police interrogators. The Court found a violation of Article 3 because the applicant of the criminal law had lacked rigour and so did not have a dissuasive effect capable of ensuring effective protection from inhuman and degrading treatment. In an earlier case, which had concerned the availability if a defence of ‘reasonable chastisement’ in the context of the beating of a nine-year old boy with a stick by his stepfather, the Court had ruled that children and other vulnerable individuals were entitled to State protection in the form of effective deterrence against beatings which constituted a serious breach of their personal integrity. Placing the burden of proof on the prosecution to establish beyond reasonable doubt that the beating went beyond the limits of reasonable chastisement, when the defence was raised, did not provide adequate protection. Where the conduct complained of is that of private parties, rather than different considerations apply. The leading authorities are the cases of the ‘Costello-Roberts, 1993 and A. v UK, 1999’. The Costello-Roberts case concerned the use of corporal punishment in private schools, while the a case of ‘A’ concerned the beating of a child by his stepfather. The Strasbourg Court ruled in both cases that Contracting Parties had an obligation under Article 3 to ensure that those within their jurisdiction are not subjected to treatment prohibited by Article 2, even where that treatment was meted out by private individuals. The second requirement is for an effective investigation capable of leading to prosecution of well-founded allegations of ill-treatment. The investigation must be through, expedient, and independent, with the capacity to lead to the identification of the perpetrators whether agents of the State, or private individuals. The requirement of an effective investigation has given rise to a significant case-law.

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28
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Personal Liberty And Security: Structure of Article 5

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Article 5 takes a somewhat different approach from corresponding provisions in other human rights treaties. For example, Article 9 of the International Covenant on Civil and Political Rights simply prohibits arbitrary arrest or detention. The structure of Article 5, however, sets out a general right to liberty followed by a prohibition on deprivation of liberty save in the circumstances specified in Article 5(1)(a) to (f). These will be construed narrowly. If a respondent State cannot demonstrate that a measure falls within one of these sub-paragpahs then there is a violation of Article 5. f a measure does fall within one of these sub-paragraphs, then Article 5(1) also requires any deprivation of liberty to Article 5(2) and Article 5(4) apply to all detainees, whereas Article 5(3) applies only to persons detained pending trial on criminal charges. Article 5(5) contains an enforceable right to compensation to everyone who has been the victim of arrest or detention in contraventions of the provisions of Article 5. Derogations under Article 15 from the obligations in Article 5 are permitted. The first sentence of Article 5 provides that everyone has the right to liberty ad security of person; the meaning of ‘security’ in Article 5 is, however, uncertain. The question was raised, but not resolved, in the East African cases. On the normal principles of interpretation, the term ‘security’ should be given a meaning independent of ‘liberty’ , but the remainder of the provision is concerned exclusively with deprivation of liberty. The matter appeared to have been finally resolved in the Bozano case, where the Strasbourg Court’s reasoning indicated that the primary focus of Article 5 is the deprivation of liberty. In cases involving the disappearance of prisoners, however, the Court had made greater use of the terminology of ‘liberty and security of person’, because of uncertainty as to the continuing detention of the disappeared person and the suspicion that he or she may have been executed.

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29
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Personal Liberty And Security: What Amounts To Deprivation Of Liberty- Guzzardi v Italy 1981

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The second sentence of the provision states that no one shall be ‘deprived of his liberty’ save in the circumstances described. Confinement to a locked prison cell clearly constitutes a deprivation of liberty, but less absolute forms of restriction can be more problematic. Article 2 of Protocol 4 protects the right to leave a country and to move freely within one., so it has been necessary for the Strasbourg Court to draw a line between deprivation of liberty within the meaning of Article 5, and restrictions on freedom of movement. As the case-law shows, this distinction is more a matter of degree and intensity than of nature or substance. In deciding whether a restriction on freedom falls within the scope of Article 5, the Strasbourg Court will look at such factors as the type, duration, effects and manner of implementation of the measure in question. In the case ‘Guzzardi v Italy 1981’, the applicant was ordered on suspicion of being a member of the Mafia, to remain on a small island near Sardinia for sixteen months. Although, there was no perimeter fence, he was not allowed to leave an area of two and a half square kilometres containing a village inhabited solely by other men subject to the same type of residence order, and he had to keep a curfew and report to the police twice a day. His wife and child were not prevented from living with him but the available accommodation was cramped and dilapidated and thus unsuitable for a family. Although he was allowed to work, there were few employers on the island and he was unable to find a job. He had to seek the permission of these conditions was punishable by incarceration. The Strasbourg Court, comparing Guzzard’s situation to that of a person kept in an open prison, found that there has been a deprivation of liberty for the purposes of Article 5. There is no deprivation of liberty if the applicant consents to detention. However, the Court will examine the concrete situation of the person involved. The applicant in the HL case was severely autistic, unable to speak and prone to agitation and self-harm. His doctors decided that it was in his best interests to be admitted to hospital for a while; since he did not resist, he was admitted as an ‘informal’ patient, under no legal obligation to remain in hospital. He remained in hospital on the basis for just over three months; thereafter, following national legal proceedings, he was compulsorily detained. He complained under Article 5 (1) about his time as an ‘informal’ patient. The Court did not find it determinative that the applicant had been compliant and never attempted, or expressed the wish, to leave, considering that ‘the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention. Instead, it found the key factor to have been that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements, and he was not, in reality,f free to leave, since had he made such an attempt there was evidence that the doctors would immediately have detained him under compulsory powers. There had, therefore, been a deprivation of liberty.

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30
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Personal Liberty And Security: What Amounts To Deprivation Of Liberty- Shimovolos v Russia 2011 And Austin and others v UK 2012

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Cases involving members of the armed forces have thrown up some problems of definition. The ‘Engel’ case concerned the penalties which could be imposed on conscripted Dutch soldiers. There were grades of arrest: the lower grades involved confinement to a different regime might well be applicable to the armed forces, and went on to find that the light forms of arrest did not amount to deprivations of liberty, although stick arrest would. Similarly, once an individual is detained in prison, additional restrictions on his or her liberty, imposed for disciplinary reasons, will not usually give rise to any issue under Article 5(1), although sufficiently severe cases could breach Article 3. In the case ‘Shimovolos v Russia 2011’ the Court found that, where the applicant was forcibly taken to a police station to be questioned about his future involvement in a protest, this amounted to a deprivation of liberty despite being detained in the police station for no more than 45 minutes. The Court has subsequently adopted a more restrictive approach to ‘deprivation of liberty’ under Article 5. In ‘Austin and others v UK 2012’, protests had been held in London which had led to some disorder. As part of the police operation, part of the demonstration was cordoned off (known as kettling) and those who were inside the cordon were not allowed to leave until some hours later. One applicant was a protester whilst the others had been caught up in the cordon but were not part of the demonstration. The Government argued that the cordoning did not amount to a deprivation of liberty as the purpose of the police action had to be taken into account in determining if a deprivation had taken place. The Court accepted the Government’s arguments in finding that there had not been a deprivation of liberty. The Court considered the purpose of the police actions relevant to whether there was a ‘deprivation of liberty’ under Article 5. The Court noted that this decision was based on the ‘specific and exceptional’ facts of the case. This was a situation of force majeure, where there was an imminent risk of violence and injury to those present. The Court had to be creative in its approach to ‘deprivation of liberty’ in order to allow crowd control that was not arbitrary and was continually assessed as necessary the the police. However, the dissenting opinions in the case note that this is not how ‘deprivation of liberty’ had previously been interpreted. The purpose of the State action has been a part of the deliberation on whether a deprivation is justified under Article 5(10(a) to (f) and not whether there has been a ‘deprivation’. The dissent expressed concern with the majority’s argument that in crowd control cases, the maintenance of law and order can be taken into account in deciding if there is a deprivation, as this ‘appears dangerous to us in that it leaves the way open for carte blanche and sends out a bad message to police authorities.’ The decision in Austin may make it easier foe a State to argue that Article 5 is inapplicable by allowing States to argue for a balancing exercise when determining ‘deprivation’, which may introduce added grounds for actions and so undermine the exclusive grounds for a deprivation of liberty specifically set out by the Convention. Despite the Court acknowledging this is an exception case, the dissent’s concerns may be justified. However, in a subsequent judgment, the Court unanimously found a violation of Article 5, where the applicants were Chenchen refuges held for several hours by the police in Georgia. The Government argued that checks were being carried out on Chenchen refugees due to the prevailing security situation. However, although the Court was not specifically commenting on whether there was a deprivation, it made it clear that Article 5(1) was to be narrowly constructed. It is yet to be seen what impact the Austin decision may have on future case law, but the pronouncements of the court post Austin have reiterated the restrictiveness of Article 5 without referring to Austin.

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31
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Personal Liberty And Security: The Lawfulness of the Deprivation of Liberty

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A deprivation of liberty which does not fall within one of the six categories listed in Article 5(1) will breach the Convention. It is not, however, sufficient merely to come within one of the permitted grounds of detention. The deprivation of liberty must also be ‘lawful’ and carried out ‘in accordance with a procedure prescribed by law’. ‘Lawfulness’ in Article 5(1) carries the same meaning as ‘in accordance with law’ in Articles 8-11. In the case ‘Amuur v France 1996’, guidelines under the French law concerning the holding of asylum seekers in the international zone of an airport were contained in an unpublished Ministry of the Interior circular. This circular was not available to asylum seekers or their lawyers, contained no guarantees against arbitrary detention, and did not provide for review by the national courts. The law was not sufficiently clear and accessible. Similarly, in the case of ‘Baranowski v Poland 2000’, the Court found deficiencies in the Polish law on pre-trial detention. The Court found that the practice of maintaining detention on the basis of the indictment was not founded on any specific legislative provision or case-law but stemmed from the absence of clear rules. It did not, therefore, satisfy the test of foreseeability. Furthermore, the fact that without a court order the detention could continue for an unlimited and unpredictable period was contrary to the principle of legal certainty and open to arbitrariness and abuse. As the Baranowski judgement indicates, even where the national law has been complied with,the deprivation of liberty will not be ‘lawful’ if national law allows for arbitrary or excessive detention.

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32
Q

Personal Liberty And Security: ARBITRARINESS

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It is axiomatic that the essence of Article 5 is to protect the individual against arbitrary detention. Even a detention which is lawful under national law will be a breach of Article 5 if it is arbitrary. Such a situation would arise where the authorities have acted in bad faith or used deception, as in the case of ‘Conka v Belgium 2002’, where Romany families were tricked into presenting themselves at a police station with the promise that their asylum applications would be completed, only to be served with deportation papers and taken into immediate custody. The Grands Chamber has spelled out the key principles relating to arbitrariness in its judgement in the ‘Saadi 2008’ case. The Court stressed that both the order to detain and execution of the detention must genuinely comfort with the purpose of detention as set out in Article 5(1); a failure to ensure that there is some relationship between the ground of permitted deprivation of liberty and the conditions of detention will render the deprivation arbitrary. The Strasbourg Court will also asses whether detention was necessary to achieve its stated aim. Detention should be seen as a remedy of last resort, and lesser measures must be considered and found to be insufficient to safeguard either the individual or the public interest. It follows that the duration of any detention will also be a relevant factor in considering whether it was or had become arbitrary in nature. In James, Wells and Lee v United Kingdom, the Court found that rehabilitation is part of any indeterminate sentencing scheme for dangerous prisoners. Delays in providing prisoners he’d under such a scheme with access to the appropriate treatment courses needed in order to demonstrate rehabilitation meant that the prisoners could not demonstrate elimination of risk which was the reason for their continued detention. These delays meant the detention after the prisoners’ determine sentence had expired was arbitrary under Article 5(1). Where detention is for the purpose specified in Article 5(1)(b), (d), or (e), the notion of arbitrariness requires an assessment to be made of the necessity of detention for the stated aim. The requirement is somewhat different in relation to detention following conviction by a competent court under Article 5(1)(a), since the choice of detention as a sentence and its duration are matters for the national court rather than the Strasbourg Court. The Court has adopted a similar position in relation to detention with a view to deportation in Article 5(1)(f), if provided that the detention does not continue for an unreasonable length of tome, and hat deportation proceedings are conducted with due diligence. The Court has said that the same consideration applies where the detention is for the purpose of preventing an unauthorised entry into the country.

33
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Personal Liberty And Security: Positive Obligations

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The development of positive obligations under Article 5 has lagged somewhat behind its development under under other Articles of the Convention, most notably Articles 2,3 and 8. That position has largely been remedied by the Strasbourg Court’s judgment in the ‘Storck v Germany 2005’ case. The applicant, who was born in 1958, had spent much of her life in hospitals and psychiatric institutions. One of the issues raised in her application concerned her detention in a locked ward in a private psychiatric clinic for nearly two years from July 1977 to April 1979. The police had assisted in her return to the clinic when she had escaped. An action for damages which she later instituted was, following appeals, unsuccessful. The Strasbourg Court found that the responsibility of the respondent State arose due to the police assisting in her return to the clinic and the courts rejecting her claims as well as the State haven positive obligations under Article 5. To the extent that earlier pronouncements might be taken to indicate that there are no or only very limited, positive obligations arising under Article 5, those decisions should not be regarded as so deciding. In the ‘Ranstev 2010’ case, involving human trafficking, the Court found that the State’s responsibility is engaged where it fails to prevent a loss of liberty which is imposed on a victim by private individuals. The Court has further developed procedural obligations under Article 5, especially the need for investigations in cases involving disappearances. In Varna v Turkey, the Court made it clear that where there is an arguable claim that an applicant had been taken into custody and had not subsequently been seen, it is incumbent on the State to carry out an effective investigation. The question has also risen as to the States obligations to apply Article 5 where it is under positive obligations flowing from other Convention Articles such as Article 2 and Article 3. In Jendrwoski v Germany, the Court considered the relationship of positive obligations under Article 5 with those arising into same situation under Articles 2 and 3. The applicant, a convicted rapist, was challenging his continued detention. Whilst acknowledging a State’s obligation to protect persons within its jurisdiction under Articles and 3 and noting that they considered the applicant was at risk of reoffending, the Court nevertheless stated that he Court has: repeatedly held that the scope of any positive obligation on State authorities to take preventive operational measures to protect individuals from the criminal acts of another individual must take into consideration the need to ensure that the authorities exercise their powers to control and prevent crimes in a manner which fully respects the due process and other guarantees contained, in particular, in Article 5 of the Convention.

34
Q

Personal Liberty And Security: Permitted Pre-Trial Detention

A

As long as, a t the time of the arrest or detention, the intention to bring the suspect to court is there, it is immaterial whether or not in the event he is actually brought to court or charged, although too long a period of preliminary detention without judicial control may give rise to an issue under Article 5(3). The word ‘offence’ in Article 5(1)(c) carries an autonomous meaning, identical to that of ‘criminal offence’ in Article 6, and the ‘offence’ must be specified and concrete. Although the classification of the offence under national law is one factor to be taken into account, the nature of the proceedings and the severity of the penalty at stake are also relevant. Thus, for example, detention under close arrest on charges of desertion from the British army, carrying a maximum penalty of two years’ imprisonment, falls within Article 5(1)(c), although such military offences lie outside the mainstream English criminal law. There will accordingly, be very few cases falling within the second two alternatives in paragraph 1 (c). Since the words ‘when it is reasonably considered necessary to prevent (the detained person) committing an offence’ do not authorise general preventative detention, evidence of intention on the part of the detainee to commit a concrete office will be necessary. However, in most European countries, acts preparatory to the commission of a crime are themselves categorised as offences. Such evidence would, therefore, usually be sufficient to bring the detainee within the first limb: arrest or detention upon ‘reasonably suspicion of having committed an offence.’ Similarly any arrest or detention falling within the third limb will also fall within the first. The requirement that the arrest and detention must be dependent upon the existence of reasonable suspicion that an offence has been committed means that there must be facts or reasonable suspicion that an offence has been committed means that there must be facts or information which would satisfy an objective observer. The standard of proof required for making an arrest is lower than that required for a criminal charge and subsequently a conviction. In the Fox, Campbell and Hartley case, the applicants argued that the interpretation by the courts of emergency legislation as requiring only a subjective test of honest belief that the person detained was a terrorist was incompatible with Article 5(1)(c). The Strasbourg Court found that in the context of the special problems presented in combating terrorism a lower standard of ‘reasonable suspicion’ might be acceptable, but that some objectively realistic grounds would still be needed. Since the respondent State had not provided any evidence on which it could be shown that there was any basis for the suspicion that the applicants were terrorists, the Strasbourg Court found a violation of Article 5(1)(C). in the Labita case, it held that the uncorroborated hearsay evidence of an anonymous informal was not enough to found ‘reasonable suspicion’ of the applicant’s involvement in Mafia-type activities. The applicant complained of unlawful arrest, assault, and ill-treatment before the national courts, where the arresting officer gave evidence that he had made the arrest after having been told by a superior officer at a briefing that the applicant was suspected of the murder. It emerged during the Strasbourg proceedings that the briefing had been based on information from four separate informants, who had previously been proved reliable and whose information about the murder had been consistent. The Court held that this was sufficient to found a ‘reasonable suspicion’ that the applicant was involved. Article 5(3) guarantees certain rights to persons arrested or detained in accordance with the provisions of Article 5(1)(c). The first part of Article 5(3) is concerned with rights immediately on arrest, the second part deals with detention on remand that is , following charge.

35
Q

Personal Liberty And Security: The Arrest Period

A

According to Article 5(3), any person arrested on a suspicion of having committed a criminal offence has the right to be brough ‘promptly’ before ‘a judge or another authorised by law to exercise judicial power’. In contrast to the right to judicial review of the legality of the detention under Article 5(4), which may be conditional on the application of the detained person, the right under Article 5(3) is to be brought promptly before a judge: it is the duty of a Contracting party on its own initiative to see that this is done. There has been considerable case-law on the meaning of ‘promptly’ in this context, particularly in connection with applicants detained on suspicion of involvement in terrorism. States as diverse as the United Kingdom and Turkey have invoked the need to hold terrorist suspects incommunicado for some time following arrest, because of the risk that other members of the terrorist organisation could destroy evidence or put the lives of witnesses or even judges in danger. Conversely, judicial safeguards are of particular importance in connection with emotive crimes of this nature, when the police and prosecution are likely to be under pressure to secure convictions and may be tempted to use unorthodox means to secure confessions. The purpose of this provision is to protect those held in custody from ill-treatment. The Strasbourg Court has never put a finite limit on the acceptable length of preliminary detention, since it considers that this must depend on the circumstances in each case. Some guidance is, however, provided by the Brogan case, which indicates that the period in issue is a matter of a few days. The applicants were detained under special provisions enabling the Secretary of State for Northern Ireland to extend an initial forty-eight-hour period of detention. The shortest length of detention after arrest was four days and six hours and the longest was six days and sixteen hours. All the applicants were released without charge. The Government claimed these measures were necessary as they needed extra time to question terrorist suspects who had been trained in counter-interrogation techniques. Even taking account of the particular situation at that time in Northern Ireland, the Court regarded all cases as violations of the requirement of Article 5(3).

36
Q

Right To A Fair Trial: Article 6

A

Article 6 is an omnibus provision, which has been described as ‘a pithy epitome of what constitutes a fair administration of justice. The rights protected by the Article occupy a central place in the Convention system. A fair trial, in civil and criminal cases alike, is a basic element of the notion of the rule of law and part of the common heritage, according to the Preamble, of the Contracting Parties. While Article 6(2) and (3) contain specific provisions setting out ‘minimum rights’ applicable only in respect of those charged with a criminal offence, Article 6(1) applies both to civil and criminal proceedings. The text reads: In the determination of his civil rights and obligations or of 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. Judgement 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 option of the court in special circumstances where publicity would prejudice the interests of justice. Article 6 is the provision of the Convention most frequently invoked by applicants to Strasbourg.

37
Q

Right To A Fair Trial: The Scope Of Article 6(1)

A

Every month the Strasbourg Court receives many hundreds of letters complaining about the decisions reached by national courts in civil and criminal trials. Many of these applications are, however, based on a fundamental misconception of the Convention system. The Court has no jurisdiction under Article 6 to reopen national legal proceedings or to substitute its own findings of fact, or the application of national law to them, for the conclusions of national courts. The Court’s task with regard to a complaint under Article 6 is to examine whether the proceedings, taken as a whole, were fair and complied with the specific safeguards stipulated by the Convention. Unlike a national court of appeal, it is not concerned under article 6 with the questions whether the conviction was safe, the sentence appropriate, the award of damages in accordance with national law, and so on. A finding by the Court that an applicant’s trial fell short of the standards of Article 6 does not have the effect of quashing the conviction or overturning the judgement, as the case may be. The Court calls this principle the ‘fourth instance’ doctrine, because it is not tone seen as a third or fourth instance of appeal from national courts. It is important to bear the doctrine in mind when considering whether a particular factual situation based on criminal or civvil proceedings raises any issue under Article 6.

38
Q

Right To A Fair Trial: What Is A Criminal Charge?

A

Article 6(1) applies ‘in the determination of a persons civil rights and obligations or of any criminal charge against him’. As with other key expressions used in the Convention, the Court has ruled that the concept of a ‘criminal charge’ must bear an ‘autonomous’ meaning, independent of the categorisations employed within the national legal orders. In this way, it is possible to achieve uniformity of approach throughout Europe and prevent States from avoiding Convention controls by classifying offences as disciplinary, administrative, or civil matters. The ‘Engel’ case concerned action taken against members of the armed forces in respect of offices, such as insubordination, classified in the Netherlands as disciplinary in nature. The Court stated that relevant considerations in establishing whether the matter should be seen as involving the determination of a ‘criminal charge’ for the purpose of Article 6 were threefold: (1) the classification of the proceedings under national law; (2) the essential nature of the offence; and (3) the nature and degree of severity of the penalty that could be imposed having regard in particular to any loss of liberty, a characteristic of criminal liability. The Court also considered the group to whom the legislation applied small and closely defined groups of potential offenders are suggestive of a disciplinary or administrative procedure rather than a mainstream criminal offence. Short periods of imprisonment of two days of strict arrest was insufficiently severe, in the absence of other criminal characteristics, to be regarded as a criminal penalty. The national classification is however important. If a matter is classed as criminal under national law, this will be enough to bring it within the scope of Article 6, even if it is relatively trivial. The Grand Chamber has endorsed and applied this methodology in the Eheh and Connors case. The applicants were convicted rapists serving sentences of imprisonment who committed offences contrary to the Prison Rules —threatening to kill a probation officer, in one case, and colliding with a prison officer during exercise in the other. They were tried by the Prison Governor, without legal aid or representation, and sentenced to additional days of custody —forty for the first applicant and seven days for the second applicant. The Court, applying the ‘Engel’ criteria, noted that the offences were classified as disciplinary under national law and applied only to prisoners, although they also corresponded to the offences of making a threat to kill and assault under the mainstream criminal law. The nature and severity of the punishment were decisive in leading the Court to hold that the offences were ‘criminal’ for the purposes of Article 6: under national law there was a legal right to remission, and the loss of remission or additional days of imprisonment amounted to new deprivations of liberty over and above the rape sentences. The Court emphasised in this connection that what was important in deciding whether the applicant faced a ‘criminal charge’ was the penalty that was ‘liable to be imposed’, which could be determined with reference to the statutory maximum, which was forty-two days for each offence. In these circumstances, the deprivations of liberty which were liable to be, and which actually were, imposed on the applicants were not sufficiently inconsequential as to displace the presumed criminal nature of the charges against them. The Court did not give a fixed lower limit at which a sentence of imprisonment would be too short to bring a disciplinary charge into the criminal sphere, although it did refer to the decision in the Engel case that two days was not enough. In the ‘Ezeh and Connors’ case, the respondent State argued that the special need to maintain discipline in prisons entailed that prison governors should be allowed a certain flexibility in awarding punishment of loss of remission, following proceedings which need not necessarily comply with Article 6. The Court took note of these submissions, but considered that there were other sanctions available to prison governors which would be adequate to keep up discipline without bringing Article 6 into operation.

39
Q

Right To A Fair Trial: At what stages of proceedings does Article 6(1)

A

The protection of Article 6 starts from the time when a person is charged with a criminal offence. This is not, however, necessarily the moment when formal charges are first made against a person suspected of having committed an offence. For, as previously noted, the protection on Article 6 does not depend on the particular features of the system of criminal investigation and prosecution, which may and do vary considerably between the Contracting Parties. Moreover, as the object of Article 6 is to protect a person throughout the criminal process, and since formal charges may not be brought until a fairly advanced stage of an investigation, it is necessary to find a criterion for the opening of criminal proceedings which is independent of the actual development of the procedure in a specific case. The Court has defined a ‘charge’ for the purposes of Article 6(1) as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence.’ it may, however, ‘in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect.’ Article 6(1) covers the whole of the proceedings in issue, including appeal proceedings and determination of sentence. Thus , in the Delcourt case, Article 6(1) was found to be applicable to the proceedings before the Belgian Court of Cassation. The respondent State had argued that the Court of Cassation did not deal with the merits of cases submitted to it, but the Court found that although the judgement of the Court of Cassation could only confirm a decision, and not reverse or replace it, it was still ‘determining’ a criminal charge. The case of ‘T v UK and V v UK 1999’, raised questions about the applicability of Article 6(1) to a sentencing procedure. The applicants had been convicted in England and Wales of murder, they were sentenced to be detained ‘during Her Majesty’s pleasure’. This is an indeterminate sentence: a period of detention, ‘the tariff’, is served to satisfy the requirements of retribution and deterrence, and thereafter it is legitimate to continue to detain the offender only if this appears to be necessary for the protection of the public. At the time of the applicants’ conviction, the tariff was set by the home Secretary. The Court held that the tariff-fixing procedure amounted to the fixing of a sentence and that there had been a violation of Article 6(1) since the home Secretary was not ‘an independent and impartial tribunal’. Proceedings which are place after conviction and sentence have become final fall outside Article 6. Thus this provision does not cover an application, a convicted prisoner for release on probation or parole, or for a new trial, or for review of his sentence after the decision has become ‘res judicata’. Not does Article 6(1) apply on an application for provisional release pending trial not to proceedings following a decision that an applicant is unfit to plead to a criminal charge.

40
Q

Right To A Fair Trial: What are ‘civil rights and obligations’?

A

The definition of civil rights and obligations has proved more problematic. First, it is clear that there must be a right or an obligation. Thus, for example, questions relating to the making of an ‘ex gratia’ payment by the State would not attract the protection of Article 6 because there is no ‘right’ to such a payment. In ‘Boulois v Luxembourg, the Court found that prison leave under national law was not a right but a privilege as the permission for prison leave under national law was not a right but a privilege as the permission for prison leave was discretionary with no remedy provided under the relevant law. Although discretion is not decisive when finding a measure is not a right, in this case the wording of the legislation led to such a conclusion. Secondly, the right or obligation must exist under national law. Thirdly, the right or obligation must be ‘civil’ in nature, and it is in connection with this aspect of the definition that the real difficulties arise. The Strasbourg Court first considered the interpretation of ‘civil rights and obligations’ in the case of ‘Ringeisen v Austria, 1971’. The dispute in question involved an application by Ringeisen for approval of the transfer to him, from a private person, of certain plots of land in Austria. He alleged that the Regional Real Property Transactions Commission which had heard his appeal against the decision of the District Commission, was biased, and consequently that it was not an impartial tribunal as required by Article 6(1). The majority of the Commission concluded that Article 6(1) did not apply because the expression ‘civil rights and obligations’ should be construed restrictively as including only disputes between private individuals and not any proceedings in which the citizen is confronted by a public authority. In contrast, the Court held that Article 6(1) was applicable, although it had not been violated because there was no evidence of bias. As to the interpretation of Article 6(1), it held as follows; For Article 6, paragraph (1), to be applicable to a case it is not necessary that both parties to the proceedings should be private persons, which is the view of the majority of the Commission and of the Government. Following its decision in the Ringeisen case, the Strasbourg Court has adopted an increasingly liberal interpretation of the concept of civil rights and obligations. Thus, in another early case, it held that proceedings which involved the withdrawal of an authority to run a medical clinic and an authorisation to practice medicine were within the scope of Article 6(1). This was so even though the function of the body which had taken the decision was to act in the interests of public health and to exercise responsibilities borne by the medical profession towards society at large.

41
Q

Right To A Fair Trial: The Need For A Dispute

A

Article 6(1) requires not only that the matter concern civil rights or obligations, but that there be a dispute concerning the particular rights or obligations. In the ‘Benthem v the Netherlands 1986’ judgement, the Strasbourg Court reviewed the case-law on this requirement and summarised its content as follows: (a) Conformity with the spirit of the Convention requires that the word ‘contestation’ should not be ‘construed too technically’ and should be ‘given a substantive rather than a formal meaning’. (B) The ‘contestation’ may relate not only to ‘the actual existence of a …right’ but also to its scope or the manner in which it may be exercised…It may concern both ‘questions of fact’ and ‘questions of law’. (C) The ‘contestation’ must be genuine and of a serious nature and (d) ‘the…expression ‘contestation’ disputes over civil rights and obligations’ covers all proceedings the result of which is decisive for rights and obligations’….However, ‘a tenuous connection or remote consequences do not suffice for Article 6(1). Thus, for example, in the ‘Fayed’ case, the Court held that an investigation by inspectors appointed by the Department of Trade and Industry into the applicants’ take-over of Harrods did not attract the protection of Article 6, despite the applicants’ argument that their reputations has been at stake. The Court found that the purpose of the inquiry had been to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities—prosecuting, regulatory, disciplinary or even legislative. It was satisfied that the functions perfumed by the inspectors were essentially investigative and that they had not been empowered to make any legal determination as to criminal or civil liability concerning the Fayed brothers.

42
Q

Right To A Fair Trial: The ‘Effectiveness’ of Court Proceedings

A

A fundamental aspect of the tule of law is that ‘a final court judgment should be effective’. The Grand Chamber found a violation of Article 6 in the ‘Assanidze v Georgia 2004’ case, where the applicant, the former mayor of Batumi, was convicted of a number of criminal offences and imprisoned in the Ajarian Autonomous Republic. Even when he had subsequently been acquitted of all charges by the Gerogian courts, the Ajari authorities refused to leases to him. The Court observed that: The guarantees afforded by Article 6 of the Convention would be illusory if a Contracting State’s national legal or administrative system allowed a final, binding judicial decision to acquit to remain imperative to the detriment of the person acquitted. It would be inconceivable that paragraph 1 of Article 6, taken together with paragraph 3, should require a Contracting State to take positive measures with regard to anyone accused o a criminal offence…and describe in detail procedural guarantees afforded to litigants—proceedings that are fair, public and expeditious—without at the same time protecting the implementation of a decision to acquit delivered at the end of those proceedings. Criminal proceedings form an entity and the protection afforded by Article 6 does not cease with the decision to acquit.
The non-execution of civil judgments appear to be an endemic problem in much of east-Europe—particularly in cases where the State is the judgement debtor—and there have been many judgements finding violation of Article 6 on this ground. In the second Burdov case, the Strasbourg Cort adopted a pilot judgement following the finding of a violation of Article6(1) and of Article 1 of Protocol on account of the prolonged failure of the Russian authorities to enforce certain national judgments ordering monetary payments by the authorities. The respondent State was required to set up an effective domestic remedy to secure adequate redress for non-enforcement or delayed enforcement of judgments, and to grant such redress within one year for all victims of non-payment of judgement debts. The right to effective court proceedings also entails that once a civil judgement or a criminal acquittal has become final and binding, there should be no risk of its being over-turned. In the ‘Ryabykh 2005’ case, the Court explained: …One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires among other things, that where the courts have finally determined an issue, their ruling should not be called into question…. Legal certainty presupposes respect for the principle of ‘res judicata’…, that is the principle of the finality of judgements. This principle insists that no party is entitled to seek a review of a final and binding judgement merely for the purpose of obtaining a rehearsing and a fresh determination of the case. Higher Courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character.

43
Q

Right To A Fair Trial: The Overall Requirements of a fair hearing—An adversarial process and disclosure of evidence

A

In order for the adverbial process to work effectively, it is important, in civil and criminal proceedings, that relevant material is available to both parties. Security considerations will not justify blanket restrictions on the availability of such evidence where it affects the interests of a litigant, since there are means which can accommodate legitimate security concerns while offering a substantial measure of procedural justice to a litigant. The Court explained the principle as it applies in criminal proceedings in its ‘Rowe and Davis v UK, 2000’ judgement: It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations field and the evidence adduced by the other party…In addition Article 6(1) require…that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused. The entitlement to disclosure of relevant evidence is not, however, an absolute right. In criminal proceedings there may be competing factors, such as national security, or the need to protect witnesses at risk of reprisals, or to keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, as the Court emphasised in Rowe and Davis, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). In accordance with the ‘fourth instance’ doctrine, the Court will not itself review whether or not an order permitting non-disclosure was justified in any particular case. Instead, it examines the decision-making procedure to ensure that it complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused. In the Rowe and Davis case the prosecution had unilaterally decided, without consulting the trial judge, to withhold evidence in its possession about the existence and role of an informer. This man, who was one of the main prosecution witnesses at the applicants’ trial on charges of armed robbery and murder, and, unbeknown to the defence or the judge, received a substantial reward for assisting the prosecution authorities. The applicants were convicted and appealed, and at this stage the prosecution notified the Court of Appeal about the withheld material. The Court of Appeal inspected it and held a hearing to decide whether it should be disclosed, but the defence were not permitted to attend this hearing and were never allowed to see the evidence or informed of its nature or content.

44
Q

Right To A Fair Trial: The Overall Requirements of a fair hearing—A reasoned decision

A

A reasoned decision, while not expressly required by Article 6, is implicit in the requirement of a fair hearing, which has been recognised by the Court. If a court gies some reasons, then prima facie the requirements of Article 6 in this respect are satisfied, and this presumption is not upset simply because the judgement does not deal specifically with one point considered by an applicant to be material. On the other hand, if, for example, an applicant were to show that the court had ignored a fundamental defence, which had been clearly put before it and which, if successful, would have discharged him in whole or in part from liability, then this would be sufficient to rebut the presumption of a fair hearing. Refusal to address a ground of appeal submitted by an appellant, which is cogent and relevant, and could have effect on the outcome of the case, will also constitute a breach of Article 6(1). This analysis applies a fortiori to criminal proceedings. Thus, where a convicted person has the possibility of an appeal, the lower court must state in detail the reasons for its decision, so that on appeal, the lower court must state in detail the reasons for its decision, so that on appeal from that decision the accused’s rights may be properly safeguarded. However, under a jury system, the reasoning of the jury may not be accessible or published. The use of a lay jury was challenged in Taxquet v Belgium. The applicant had been convicted of the murder of a government minister by a jury. No reasons were given by the jury. The Court noted the divergence in legal systems in Europe and that States have considerable discretion in the choice of legal systems. The Court found: the Convention does not require jurors to give reasons for their decision…Nevertheless, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness. Safeguards may include judicial guidance or questions given to the jury which form the framework for the decision. In the ‘Gorou’ case, the Grand Chamber indicated that the elaboration of reasons must be related to the nature of the dispute before the court, and that the Strasbourg Court will take account of judicial practice in the national legal orders. This would justify only a brief decision in cases where a civil party joined in criminal proceedings was seeking to secure the filling of an appeal by the public prosecutor following an acquittal in the criminal proceedings.

45
Q

Right To A Fair Trial: The Overall Requirements of a fair hearing—Appearance in person

A

It depends on the nature of the proceedings whether a failure to allow the individual accused or civil litigant to attend in person will constitute a violation of Article 6(1). In the ‘Kremzow’ case, the applicant was represented by a lawyer at the hearing of his appeal against sentence, but was not himself brought to court from prison. The Strasbourg Court made it clear that, as a general rule, accused persons should always be present at their trial. It further held that the applicant should have been enabled to attend the hearing of his appeal against sentence, since an increase from twenty years to life imprisonment was in issue, and an assessment of the applicant was to take place. The Court said: These proceedings were thus of crucial importance for the applicant and involved not only an assessment of his character and state of mind at the time of the offence but also his motive. in circumstances such as those of the case where, evaluations of this kind were to play such a significant role and where their outcome could be of major detriment to him, it was essential to the fairness of the proceedings that he be present during the hearing of the appeals and afforded the opportunity to participate in it together with the counsel. In contrast, no issue arose under the article 6 by virtue of Kremzow’s absence during the appeal court’s consideration of his plea of nullity, since he was represented and the nature of the hearing did not require him to be there. The same principles apply in civil proceedings. Thus the individual concerned should be allowed to attend where, for example, an assessment of his or her character or state of health is directly relevant to the formation of the court’s opinion, as in the case of a parent seeking access to a child or a claimant seeking disability benefits.

46
Q

Right To A Fair Trial: The Overall Requirements of a fair hearing—Effective participation

A

It is not sufficient that the criminal defendant or civil party is present in court. He or she must, be able effectively to participate in the proceedings. The applicant’s in the ‘T and V’ cases were eleven years old at the time of their trial for the murder of a two-year-old child. The proceedings were held in a blaze of publicity, in a packed courtroom, and there was medical evidence to show that both boys were suffering from post-traumatic stress at the time. The Strasbourg Court found violations of Article 6(1), commenting that it was highly unlikely that the applicants would have felt sufficiently uninhibited, in the tense courtroom and under public scrutiny, to have consulted with their lawyers during the trial. A later case involved an 11-year-old boy with a long history of offending who was tried for robbery in the Crown Court. In contrast to the ‘T and V’ trip, the case had attracted no publicity and a modified procedure had been adopted in an attempt to make the trial less intimidating; for example, the judge and barristers left off their wigs and gowns, plenty of breaks were taken and the applicant was allowed to sit with social worker. The Strasbourg Court boneless found a violation of Article 6(1) on the ground that the applicant had been found t have the intellectual capacity of a chid aged six to eight, and appeared to have little understanding of the nature of the proceedings or what was at stake. The Court concluded that: …when the decision is taken to deal with a child, such as the applicant, who risks not being able to participate effectively because of his young age and limited intellectual capacity, by way of criminal proceedings rather than some other form of disposal directed primarily at determining the child’s best interests and those of the community, it is essential that he be tried in a special tribunal which is able to give full consideration to and make proper allowance for the handicaps under which he labours, and adapt its procedure accordingly.

47
Q

Right To A Fair Trial: Specific requirements of Article 6(1)— Public Hearings

A

Publicity is seen as one guarantee of the fairness of trial; it offers protection against arbitrary decisions and builds confidence by allowing the public to see justice being administered. To answer the question whether there has been a public hearing within the meaning of Article 6(1), it is necessary to consider the proceedings as a whole. For example, the absence of a public hearing on appeal or cassation raises an issue under Article 6(1) only if the superior court is ‘determining’ an issue, which is not the case in legal systems where the appeal or cassation court carries out a supervisory tole, in the sense that decisions of earlier hearings can be overturned only on points of law, requiring a further hearing in the court below. In the ‘Axen, 1983’ case,for example, there was a public first instance hearing of a personal injuries claim, but the appeal was heard in camera, pursuant to a scheme to reduce the workload of the courts. This did not violate Article 6(1), since the proceedings taken as a whole could be regarded as public. The role of the appeal court was limited to dismissal of the appeal on points of law, thus making the decision of the first instance court final. In England and Wales, applicants for leave to appeal against condition or sentence are normally heard in private, and the position is similar in other countries. It would seem that this is permissible if such applications can be regarded as a step in the appellate process, and if there is a right to an appeal, heard in public, against the refusal of the application. Similarly, in civil cases, interlocutory proceedings which are held in private may be permissible subject to corresponding conditions. Article 6(1) contains a list of limitations to the right to a public hearing on grounds of public policy, national security, privacy, or where strictly necessary in the interests of justice, but these are to be tightly construed. The applicant in ‘Riepan’ case was tried for offences committed in prison in a special hearing room in the prison. The public was not excluded, but no steps were taken to let anyone know that the hearing would take place. TheStrasbourg Court held that only in rare cases could security concerns justify excluding the public. It observed that a trial would comply with the requirement of publicity only if the public was able to obtain information about its date and place and if this place was easily accessible. In many cases these conditions would be fulfilled by holding the hearing in a normal courtroom large enough to accommodate spectators. The holding of a trial outside a regular courtroom, in particular in a place like a prison to which the general public usually has no access, presented a serious obstacle to its public character, and the State was under an obligation to take compensatory measures to ensure that the public and the media were informed and granted effective access.

48
Q

Freedom of Thought, Conscience and Religion: Article9, Defining Religion Or Belief

A

Article 9(1) protects two aspects of freedom of religion, belief and conscience. First, the right to believe whatever you want and freely to change your belief. This right is expressed, by the text of Article 9, to be absolute and unfettered. Secondly, Article 9 protects the right to manifest religion or belief, through worship, teaching, practice and observance. Since the manifestation of religion or belief can have an impact on others, this right is qualified by paragraph 2 of Article 9. Virtually all the applications to the Court relate to alleged interferences with the right to manifest religion or belief, since the democratic State does not tend to get involved when it comes to what a person believes within the privacy of his or her mind. The protection of Article 9 extends to a wide range of convictions and philosophies, not limited to, for example, religious belief. However, in the case of ‘Eweida and others v UK, 2013’, the Court confirmed that ‘The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance. This means that mere ideas or opinions will not constitute a belief. The borderline can frequently be difficult to draw, since belief is, of course, inherently subjective. In the ‘Pretty’ case, the Court rejected the applicant’s argument that the threatened prosecution of her husband for assisting her suicide was an interference with her ability to manifest her belief i the notion of assisted suicide for herself. But the Court did not offer a definition of religion or belief; it merely said that not all opinions or convictions constitute beliefs in the sense protected by Article 9(1), and her claims did not involve a form of manifestation of a religion or belief. Both the Commission and the Strasbourg Court have adopted a broad approach to what amounts to religions or beliefs.

49
Q

Freedom of Thought, Conscience and Religion: Article9, VIOLATION (no special treatment)

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Dismissing someone from employment solely because of their religious beliefs will violate Article 9. This will be an infringement of freedom of religion, rather than its manifestation. But Article 9 does not, of itself, give any entitlement to time off work for religious festivals. In the ‘Kosteski 2006’ case, the applicant complained of a breach of Article 9 when he was fined for taking time off work to observe Muslim religious festivals. The accommodations at his place of work required him to substantiate his claims that he was a practising Muslim. The Court adopted a similar approach in ‘Francesco Sessa v Italy 2012’, where the applicant was a lawyer who complained about the refusal to adjourn a hearing scheduled on a Jewish holidays. The Court was not convinced that this amounted to a restriction on the applicant’s right to freely manifest his faith. The applicant had not shown that pressure had been exerted on him to change his religious belief or to prevent him from manifesting his religion or beliefs. Even if there had been an interference with the applicant’s right guaranteed under Article 9(1), such interference had been justified on grounds of the protection of the rights and freedoms of others, and in particular the public’s right to the proper administration of justice and the principle that cases be heard within a reasonable time. The Strasbourg Court ruled a manifestly ill-founded a complaint that prosecution of pharmacies for refusing to supply contraceptives breached their right to manifest their religious belief.s. It was legitimate to limit the manifestation of religious beliefs in the professional sphere, and there was no evidence that the applicants could not manifest their religious beliefs without interference outside that sphere. The position was clarified in the case of ‘Eweida and others v UK, 2013’. The third applicant, Ms Ladele, was a registrar of births, deaths and marriages. As a Christian , she held the view that marriage is the union of one man and one woman for life and believed that same-sex unions are contrary to God’s will. She refused to agree to be designated as a registrar of civil partnerships, and ultimately lost her job due to this refusal. The fourth applicant, Mr McFarlane, worked for Relate as a counsellor. He refused to commit himself to providing psycho-sexual counselling to same-sex couples, which also resulted in the loss of his job. The Court confirmed that these two applicants involved a conflict of rights, namely the right of the applicants to manifest their religious beliefs and the rights of homosexuals to equal treatment, although, the Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights. While no violation of Article 9 was found in respect to these two applicants, the case clarified that an interference with the Article 9 was found in respect of these two applicants, this may arise within an employment context.

50
Q

Freedom of Thought, Conscience and Religion: Proselytism

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According to Article 9, freedom to manifest one’s religion is not only exercisable in community with others, ‘in public’ and ‘in private’; furthermore, it includes in principle the right to try to convince one;s neighbour, for example through ‘teaching, failing which, moreover’, ‘freedom to change religion or belief’, enshrined in Article , would be likely to remain a dead letter. There is no right to manifest conscience, though most such claims could almost certainly be framed in terms of manifestation of beliefs. The applicants in the ‘Kokkinakis 1993’ case, were Jehovah’s Witnesses engaged in evangelical activity, including calling at houses to persuade the occupiers to join them. They had the misfortune to call upon the wife of an Orthodox priest, who reported them to the police, since in Greece proselytism is a criminal offence. The applicant’s were arrested, charged and subsequently convicted and fined. The Strasbourg Court concluded that the Greek law against proselytism was sufficiently clearly drafted for the purposes of Article 9(2) and that it pursued the legitimate aim of protecting the rights and freedoms of others A fine distinction is made in this part of the majority’s judgement. Bearing Christian witness—an interesting phrase—is described as true evangelism, and is contrasted with ‘improper proselytism’, described as ‘a corruption of deformation of it which was not compatible with respect for freedom of thought, conscience and religion. The Greek action violated Article 9 because there was no evidence that the applicants had attempted to convince the householder by improper means. The conviction was accordingly not justified by a pressing social need. The ‘Larissis and others v Greece 1998’ case is an example of what the Strasbourg Court considers ‘improper proselytism’. The applicants were officers in the Greek air force who were convicted of proselytism after complaints from soldiers under their command that they had attempted to persuade the soldiers to become Jehovah’s Witnesses. The Court decided that the Greek authorities had been justified in taking measures to protect the junior airmen from the applicants, in view of the fact that the claustrophobic nature of life within the armed forces might make it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. There was a risk of indoctrination.

51
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Freedom of Thought, Conscience and Religion: Religious Dress And Symbols— Teacher converted to Islam, and began wearing a head scarf to school

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The prohibition of wearing the ilcmic headscarf in Turkish universities was raised in the ‘Leyla Sahin v Turkey, 2005’ case. The applicant had been a medical student at Istanbul University,. The Grand Chamber recognised the significance of secularism in Turkey, and recalled that, in countries where several religions coexist, it may be necessary to place restrictions on the manifestation of religious beliefs in order to reconcile the interests of different groups and to ensure that everyone’s beliefs are respected. There was, accordingly, a need for a margin of appreciation in the regulation of the wearing of religious dress or symbols in teaching institutions. The Grand Chamber, in concluded that there was no violation of Article 9. It is trite to observe that different Contracting Parties adopt different approaches to the wearing of the Islamic headscarf. But it can be argued that this decision is limited to the special circumstances in Turkey. That is not to be uncritical of the Strasbourg Court, which has failed to spell out exactly what the requirements of secularism are, and how the collective commitment to secularism can be balanced against the wish of some Muslim women to wear the headscarf as a symbol of their religious beliefs. The judgement of the Court in ‘Leyla Sahim’ can be criticised for concluding that the wearing of the headscarf by an individual constitutes a form of indoctrinating others. These different views are taken up in the sole dissenting opinion in this case. Judge Tulkens considers that the judgement of the Court displays a lack of European supervision here, in the face of argument by the applicant that she supported the principle of secularism and had no intention to challenge it by wearing a headscarf. The dissenting judge also observes that no other Contracting Party has a ban on wearing religious symbols which extends to higher education. Judge Tulkens is a critical of the reasoning of the majority in linking the issue to one of sexual equality and notes that a deacon of the German Constitutional Court had indicated that wearing the headscarf had no single meaning. It would be logical to argue that, if sexual equality was at issue here, and if the wearing of the headscarf indicated the subordination of women, there would be a violation of equality principles by those Contracting Parties which did not band the headscarf. In ‘Lautsi v Italy, 2011’, the applicant complained that her two children attended a State school in which crucifix was displayed in every classroom and that this was contrary to the principle of secularism in which she wished to educate her children. In finding no violation of the Convention by Italy, the Grand Chamber focused entirely upon Article 2 of Protocol 1 rather than Article 9. The distinguishing of displaying crucifixes in a classroom from the wearing of an Islamic headscarf by a teacher in the case of ‘Dahlab v Switzerland, 2001’, has significant implications for future cases under Article 9. While the banning of the wearing of an Islamic headscarf by a teacher of young children was within the State’s margin of appreciation in ‘Dahlab’, in ‘Lautsi’ the Court was keen to assert that ‘the presence of crucifixes is not associated with compulsory teaching about Christianity. While it is certainly true that distinction between different States will be appropriate due to the wide discrepancies in the role of religion across European States, and that the question facing the Court were not the same in these two cases, there is arguably less difference between a teacher wearing an Islamic headscarf and a state school displaying crucifixes than is suggested in the Court’s judgement. The Court has to walk a very tight line between upholding freedom of religion and respecting the constitutional position of the state religions.

52
Q

Freedom of Thought, Conscience and Religion: Manifestation of Religion and Belief by Prisoners

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There have been a number of complaints by prisoners of interference with religious liberty. It remains doubtful how far a prisoner can claim under Article 9 facilities to practise a religion which is not generally practised in that Contracting Party. Where a British prisoner complained of the absence of the services of a Church of England priest in a German jail, the Commission appears too have considered that a German Protestant pastor might have been sufficient to comply with Article 9 in such a case. The Commission stated that a refusal by the prison authorities to provide special food required by a religion which was not a religion usually practised in that State was permitted under Article 9(2). Nor, in the Commission’s opinion, did Article 9 impose any obligation to put at the disposal of prisoners books which they consider necessary for the exercise of their religion or for the development of their philosophy of life. The Commission, or even under Article 2 of Protocol 1. In the same case, ‘X v Austria, 1965’ the applicant’s complaint that the prison authorities had refused him permission to grow a beard, as prescribed by his religion, was rejected under Article 9(2). The respondent State had submitted, somewhat curiously, that the refusal was justified as being necessary in order to be bale to identify the prisoner. The decision is not satisfactory. The case ‘X v UK, 1975’ concerned a Buddhist prisoner who was refused permission to send out articles for publication in a Buddhist magazine. He claimed that the exchange of ideas with his fellow Buddhists was an element in the exercise of his religion, and alleged a violation of Article 9. The Commission noted that the prison authorities had tried to find a Buddhist minister for him and, when they had been unable to do so, allowed him an extra letter each week to communicate with a fellow Buddhist. The Commission found that the applicant had failed to prove that communication with other Buddhists was a necessary, as distinct from important, part of the practice of the peace of his religion. Consequently the application was manifestly ill-found. In the case of ‘Jakobski v Poland 2010’, a Buddhist prisoner complained about the failure to provide him with a meat-free diet while in prison. The Court regarded the applicant’s decisions to adhere to a vegetarian diet as motivated or inspired by his religion and thus falling within the scope of Article 9, rejecting Poland’s argument that vegetarianism was not a vital tenet of Buddhism. The Court proceeded to find a violation on the basis that the authorities had failed to strike a fair balance between the interests of the prison authorities and those os the applicant. In particular, the Court was ‘not persuaded that the provision of a vegetarian diet to the applicant would have entailed any disruption to the management of the prison to to any decline in the standards of meals served to other prisoners. Such an approach stands in stark contrast to the earlier admissibility decision by the Commission. However, ‘Kovalkovs v Latvia 2012’, an admissibility decision by the Court, showed greater parallels to the Commission’s approach. The applicant complained in general terms that he had been denied the ability to follow the religious customs of his faith. The Court focused on the applicant’s purported inability to read religious literature, to meditate and to pray because of being placed in a cell together with other prisoners and on the fact that incense sticks were taken away from his cell, all of which it regarded as motivated or inspired by a religion and not unreasonable. It concluded that, taking into account the State’s margin of appreciation, these impugned inferences were necessary in a democratic society for the protection of the rights and freedoms of others. This legitimate aim was relevant due to a number of factors, such as potential financial implications having an indirect impact on the quality of treatment of other inmates; the wish of other prisoners not to be disturbed by the applicant’s religious rituals; and the need to limit the types of objects that may be kept in prison cells. The interference was proportionate with these legitimate aims because it was not such as to completely prevent the applicant from manifesting his religion. The Court took the view that ‘having to pray, read religious literature and to meditate in the presence of others in an inconvenience, which is almost inescapable in prisons, yet which does not go against the very essence of the freedom to manifest one’s religion. As the prison authorities had, on at least one occasion, offered the applicant the use of separate premisses for performing religious rituals and the applicant has refused that offer, the Court was satisfied that the valance between the legitimate aims and the ‘minor’ interference with the applicant’s freedom to manifest his religion had been achieved. The applicant’s complaints concerning Article 9 of the Convention were held to be inadmissible as manifestly ill-founded.

53
Q

Freedom of Thought, Conscience and Religion: Immigration Issues and Freedom of Religion

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In the ‘El Majjaoui, 2007’ case, a mosque in The Netherlands, which served Muslims from the local Moroccan community, had recruited an imam from abroad, but failed to secure a work permit for him. The individual and the mosque argued that there was a breach of Article 9 in the refusal to provide a work permit for the imam. The Chamber had relinquished the case to the Grand Chamber, but, by the time the case came before the Grand Chamber, a subsequent application for a work permit had been successful. The Grand Chamber struck the case out of its list. In so doing, the Grand Chamber expressed its agreement with a Commission decision that Article 9 does not guarantee foreign nationals a right to obtain a residence permit for work, even if the employer is a religious association. Immigration issues were again raised in ‘Nolan and K v Russia 2009’. The applicant went to Russia in 1994 on an invitation of the Unification Church, a religious association officially registered in Russia. He was granted a leave to stay which was subsequently extended on an annual basis through invitation from the Unification Church until 2002 when the Russian authorities banned his re-entry to the State on the basis of national security. Although the Russian Government claimed that the threat to national security arose from the applicant’s activities rather than his religious beliefs, it produced no evidence to support this. Furthermore, Article 9(2) did not include interests of national security as a legitimate aim for an interference with the right to manifest a religion or belief. The Court was adamant that Article 9(2) would be strictly interpreted. As the Russian Government had not put forward a plausible legal and factual justification for the applicant’s exclusion from Russia, and in light of the Concept of National Security of the Russian Federation, as amended in January 2000, which declared that the national security of Russia should be ensured in particular through opposing ‘the negative influence of foreign relies organisations and missionaries’, the Court found unanimously that there been a violation of the applicant’s right to manifest his religion. Article 9 is unlikely to be of assistance in the context of expulsion. The ‘Z and T v UK 2006’ case, concerned a couple who had left Pakistan in October 2001 in the face of attacks on Christian churches, and traveled to the United Kingdom where they claimed asylum. When their applications were unsuccessful, they argued that they would be unable ti live openly and freely as Christians if they were returned to Pakistan, and that this violated Article 9. In deciding that the application was inadmissible, the Strasbourg Court ruled that it was highly unlikely that Article 9 could ever be used for this purpose, since the sort of risk in relation to the exercise of religious beliefs which might justify a prohibition on removal would almost certainly fall within Articles 2 or 3.

54
Q

Freedom of Thought, Conscience and Religion: A right not to manifest a religion

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Article 9 prevents a Contracting Party from imposing obligations on citizens in relation to participation in national life which offend their religious beliefs, unless these obligations are necessary in a democratic society. A State-imposed obligation found not to serve a pressing social need was examined in the case of ‘Buscarini and others v San Marino, 2000’. The applicants had been elected as Members of the San Marino Parliament. Before taking office they were required to swear an oath ‘on the Holy Gospels’ to uphold the Constitution. The Strasbourg Court held that this was tantamount to requiring elected representatives of the people to swear allegiance to a particular religion, and was not, therefore, compatible with Article 9. In many Contracting Parties an affirmation is accepted in place of an oath where there is a requirement to take an oath in connection with some public office. In ‘Dimitras v Greece 2010’, the issue of oaths was raised once more. The applicants who had all been summoned to appear in court as witnesses or complainants in criminal proceedings, complained that they were asked to take the oath by placing their right hands on the Bible. They then had to inform the authorities that they were not Orthodox Christians and that they preferred to make a solemn declaration instead. The Court found that this presumption that a witness was an Orthodox Christian was difficult to reconcile with freedom of religion as it required those individuals to give details of their religious convictions in order to rectify that presumption and avoid having to take a religious oath. The Court unanimously found a violation of the applicants’ Article 9 rights. In ‘Sinan Isik v Turkey 2010’, the applicant, who stated that he was a member of the Alevi religious community, complained that he had to carry an identity card on which his religion was indicated as Islam. The Court referred once more to the negative aspect of the right to manifest one’s religion or beliefs, namely an individual’s right not to be obliged to disclose his or her religion or beliefs and not to be obliged to act in such a way that it is possible to conclude that he or she holds or does not hold such beliefs. The Court found a violation of Article 9 by Turkey. As the card was frequently used in everyday life, it required the applicant to disclose his religious beliefs against his will every time he used it. The Court also reiterated that it is not for the State authorities to assess the applicant’s religion and that its efforts to do so, by labelling the applicant’s religious beliefs as ‘Islam’, were in breach other the State’s duty of neutrality and impartiality.

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Freedom of Expression: What Constitutes An Interference With Free Expression

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The Strasbourg Court takes a broad view of what constitutes an interference with free expression. At its most obvious this includes executive orders preventing publication or the confiscation of publishes material. Article 10(2) makes clear that ‘penalties’ as well as ‘restrictions’, ‘conditions’, and ‘formalities’ must be justified. The ‘penalties’ referred to can include criminal sanctions, damages in a civil action, reprimands in disciplinary proceedings, or dismissals, at least when the person in question is a public sector employee. Other forms of post-publication measures can also constitute interferences if they have a chilling effect on future expression. For example, the Strasbourg Court has held that attempts to uncover journalistic sources, either by search order or by disclosure order, are interferences requiring justification under Article 10(2). In response to an applicant’s argument under Article 8, that the State should require the media to give prior notice to the subjects of media stories about their private life, the Court found that the imposition of pre-publication notifications could have a chilling affect on the media and so would not impose such a requirement. Refusal to authorise the performance of a play constitutes a restriction on freedom of expression, as can confiscation of written materials intended to be given to others in order to impart information and ideas. A prohibition on wearing the five-pointed red star, as the symbol of international workers’ movement falls within the ambit of Article 10. Revocation of a call-up for military service can be an interference with freedom of expression.

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Freedom of Expression: Limitations

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Certain limitation are expressly allowed. Article 10(1) itself provides that Contracting Parties may require the licensing of broadcasting, television, or cinema enterprises. Moreover, in common with Articles 8,9, and 11, Article 10 includes a second paragraph which permits a Contracting Party to limit the right set out in the first paragraph, provided that such limitations are ‘prescribed by law’, and ‘necessary in a democratic society’ in pursuit of one of the specified aims. The situations in which a restriction may be justifiable include the need to protect important public interests—such as national security, territorial integrity, freedom from crime and disorder, health and morality, and the authority and impartiality of the judiciary—and also other individual rights, such as a person’s right to privacy or reputation. The margin of appreciation allowed to Contracting Parties in restricting freedom of expression will vary depending on the purpose and nature of the limitation and of the expression in question. As the Strasbourg Court made clear in the ‘Handyside, 1976’ judgement, ‘every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued,’ On the other side of the balance, to be weighed against the importance of the aim pursued by the restriction, is the nature of the expression restricted. The Strasbourg Court takes into account the fact that, in the Preamble to the Convention, freedom of expression not only is important in itself, but also plays a central rile in the protection of the other rights under the Convention. Thus the Court consistency gives a higher level of protection to publications and speech which contribute towards social and political debate, criticism, and information—in the broadcast sense. Artistic and commercial expression, in contrast, receive a lower level of protection. The Court examined the restriction of access to internet sites for the first time in ‘Yildirim v Turkey, 2012’. The applicant had established a google site in order to publish his academic research. Access to gale sites were blocked by a court order as part of criminal proceedings against another google user. The Court examined the law on internet restrictions throughout Europe and although they concluded there was no clear consensus as to the form of permissible restrictions due to the rapidly changing nature of the medium, the Court underlines the fact that the: Internet had now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest. Even though the measure in question was a restriction rather than a wholesale ban, it was held to be a violation of Article 10. In a dissenting opinion in ‘Movement Reline Suisse v Switzerland’ the judge noted that ‘the Internet being a public forum par excellence, the State has a narrow margin of appreciation with regard to information disseminated through this medium. This is even more the case as regards hyperlinks to web pages that are not under the ‘de facto’ or ‘de sure’ control of the hyperlinked. The dissent disagreed with the majority in this case that the poster in question should not be authorised as it held a link to a website that contained ideas linked to pedophilia and cloning. The indirect relationship between the hyperlink and future content of a website the hyperlinked cannot control, casts doubt on the necessity to retract a poster which contains the hyperlink. The Court has found that the form of expression includes the language in which it is expressed. In the ‘Sendikasi’ case the trade union in question promoted education in another tongue, which in this case was Kurdish. An order for the dissolution of the Union was made on the grounds the promotion of Kurdish threatened the integrity of the State found a violation of Article 10 stating that ‘Article 10 encompasses the freedom to receive and impart information and ideas in any language which affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds.

57
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Freedom of Expression: Hate speech and incitement to violence

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As a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance. There can be no doubt that the concrete expressions constituting hate speech, which may be insulting to particular individuals or groups, are not protected by Article 10’ The applicant in the ‘Garaudy v. France’ case, was an historian who wrote a book which denied various aspects of the Holocaust. The Strasbourg Court observed: There can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does in his book, does not constitute historical research akin to a quest for the truth. The aim and the result of that approach are completely different, the real purpose being to rehabilitate the National Socialist regime and, as a consequence, accuse the victims themselves of falsifying history. Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. The denial or rewriting of this type of historical fact undermines the value on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order. Such acts are incompatible with democracy and human rights because they infringe the rights of others. Its proponents indisputably have designs that fall into the category of aims prohibited by Article 17 of the Convention.

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Freedom of Expression: ‘WATCHDOG’ OF DEMOCRACY

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The Strasbourg Court has repeatedly emphasized that the press act as a ‘public watchdog’ in a democratic society. Although they must not overstep certain bounds and may be regulated, they have a duty nevertheless to impart information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas, the public also has a right to receive them. As a result, the national margin of appreciation is limited when the author of the expression in question is a journalist, fulfilling his social duty to impart information and ideas on matters of public concern. Journalists should even be free to use a degree of exaggeration and provocation. The Strasbourg Court has also recognized that other associations, such as environmental campaign groups, fulfil a role, similar to that of the press, in stimulating public discussion. As a result, the Court will be careful to ensure that any penalty imposed on them does not have a disproportionate ‘chilling effect’ on their ability to contribute to the public debate. Lawyers, however, are expected to be circumspect in their expression, especially when they are acting in litigation: The Court reiterates that the special status of lawyers gives thern a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of mernbers of the Bar. Moreover, the courts—the guarantors of justice, whose role is fundamental in a State based on the rule of law—must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect thern to contribute to the proper adrninistration of justice, and thus to maintain public confidence there in. While lawyers too are certainly entitled to conunent in public on the administration of justice, their criticism must not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public’s right to receive infornvation about questions arising from judicial decisions, the requirernents of the proper administration of justice and the dignity of the legal profession. The function of the subject in society is also important. Penalties imposed for criticizing the government of a State will require extrernely strong justification. As the Strasbourg Court said in the Castells case: The lirnits of pertnissible criticisln are wider with regard to the Government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the Govermnent must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position which the Govermnent occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media. This includes not only members of the government but Heads of State, including States which have a Monarchy. It is not just the State that has to be tolerant. Flhe limits of acceptable criticism are wide in regard to all politicians, whether or not they are in the government, because they knowingly lay themselves open to the scrutiny of the press and public. The same holds for criticism of civil servants acting in an official capacity; and similar principles apply to other persons who have voluntarily entered the public arena: for example prominent businesspeople, who are actively involved in the affairs of large public companies, or persons and associations that participate in a public debate.

59
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Freedom of Expression: Conflict with the Right to Private Life

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The Strasbourg Court initially established some guidelines on the use of photographs in relation to rights protected by Article 8 in the ‘Von Hannover case.’ The Strasbourg Court has also addressed the question in the context of Article 10, noting the relationship between the two Articles. The balancing exercise required is a tricky one for all concerned. When does an expectation of respect for private life get trumped by the right of the general public to be informed, through publication of photographs of the person concerned, of a matter of public interest? When will a photograph in addition to words contribute to a debate of general interest?
The applicant in the ‘Von Hannover’ case was Princess Caroline of Monaco. She complained about the publication in German magazines of paparazzi photographs of her eating in restaurants, playing with her children, and enjoying herself on holiday. She sought an injunction in the German courts to prevent the publication of further photographs. The German Constitutional Court, however, refused an injunction. The Strasbourg Court observed that: Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of ‘ideas’, but of images containing very personal or even intimate ‘information’ about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution. The Court drew a ‘fundamental distinction’ between the reporting of facts capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, where the press exercised an important ‘watchdog’ role, and the reporting of details of an individual’s private life, where it did not. Although the public right to be informed could in some extend to aspects of the private life of public figures, particularly politicians, that was not the case here In ‘MGS Limited v United Kingdom’, the Court held there was no violation where the domestic courts found a breach of confidence when the newspaper printed stories about the supermodel Naomi Campbell’s history of drug abuse and treatment for drug addiction. It held that the stories about drug abuse were already in the public domain. It was the additional information about the model’s treatment for addiction that interfered with her privacy.
In a further two cases involving Von Hannover and in the ‘Axel Springer AG’ case, the Court further elucidated on the factors it will consider when balancing the protection of the private life of the applicant with the need to protect freedom of expression. In Axel Springer, the applicant newspaper printed articles about the arrest of a well-known television actor for possession of drugs. The actor played a police officer in a television series. The actor claimed the articles had violated his private life and the domestic courts had imposed an injunction on the newspaper prohibiting any future stories on the actor’s arrest. The Court noted the rights under Article 8 and Article 10 are accorded equal respect and so when balancing the rights the Court would consider: contribution to a debate of general interest; how well known is the person concerned and is the subject of the report; prior conduct of the person concerned, method of obtaining the inforrnation and its veracity; content, form, and consequences of the publication; severity of the sanction imposed. In the present case, the Court found that the injunctions were a violation of Article 10 as the actor was well known in his role as a police officer, he had revealed details of his private life in previous interviews, the police and prosecutor were the source of the stories, the stories focused on the actor’s arrest and did not make unsubstantiated allegations, and the injunctions could have a chilling effect. In the Armoniené case, the Strasbourg Court held that, even where the national courts uphold an individual’s claim to privacy against the press, there will be a breach of Article 8 if the damages awarded are too low. The applicant was the widow of a man who was not a public figure of any kind. He was, however, named in an article on the front page of the biggest Lithuanian newspaper, The article, which also included his address, claimed that he had AIDS and had fathered a child with an unmarried mother who was also HIV positive. The Lithuanian court found that the newspaper article was unfounded and had damaged the applicant’s reputation, health, and relationships, but that it had not been deliberately malicious. It awarded the maximum amount of damages permitted by law in the absence of proof of malice, approximately €3,000. The Strasbourg Court found that there had been an ‘outrageous abuse of press freedom’ causing substantial harm and found the statutory restriction on the judge’s power to award damages to breach Article 8.

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Q

Freedom of Expression: Severity of any Penalty

A

The severity of the penalty imposed will often be important. Large awards of damages in civil proceedings can, in themselves, be enough to violate Article 10, particularly if they are out of proportion to the income of the applicant and there is no evidence of any financial damage to the person defamed. If damages are awarded bv juries, the judiciary will be required to exercise a certain amount of control over the level of those damages so as to keep them within reasonable bounds. Similarly, if applicants arc punished for their freedom of expression by way of a criminal sanction, the Strasbourg Court mll cxarn:ne whether that sanction was necessary and appropriate. In so doing, the Court will have regard to the seriousness of the offence and the previous record of the applicant. Sentences of itnprisontnent will be particularly hard to justify. Indeed the Court has said, in the ‘Cumpana’ case, that imprisoning a journalist for defamation, when the context is a debate on a matter of legitimate public interest, requires the presence of exceptional circumstances ‘notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence. Such a sentence creates an unacceptable chilling effect on journalistic freedom of expression. There are some situations where any penalty, no matter how light, will violate Article 10. In the Eon case, the applicant was convicted of an offence and given a suspended fine of €30 for insulting the Head of State. He had waved a placard reading ‘Casse toi pov’con’ (‘Get lost, you sad prick’), a phrase used by President Sarkozy when a farmer had refused to shake his hand. The phrase was widely disseminated in the media and on the internet and became a matter of public debate. Court, found that although the fine was small, the case was part of a debate of public interest in France and the law in question may have had a chilling effect on freedom of expression, especially the use of satire, which plays an Important role in debating matters of public concern. In some cases the conduct of the applicant in adopting ‘an exceedingly casual attitude’ to national proceedings in which a penalty is imposed may influence the Court in its determination of the proportionality of the measures in issue.

61
Q

Freedom of Expression: Confidential Information

A

Article 10 guarantees the freedom to receive as well as impart information, but it does not confer a right of access to information. Although the Strasbourg Court appears increasingly ready to find an obligation on the State to provide information to concerned individuals included in the right to respect for private life under Article 8, Article 10 in contrast, is directed at proscribing interference by a public authority between a willing….giver and a willing recipient. But it will be a violation of Article 10 for a Contracting Party to refuse to grant access to documents once a national court has made an order for this to happen. The Court has also not ruled out that Article 10 includes the right of the individual not to impart confidential information if ordered by a Court, but that the question should be addressed in the circumstances of each case. In Gillberg v Sweden the applicant refused to release confidential research findings after being ordered to do so by the Court. He argued that he had a negative right not to impart information. However on the facts the Court found that the research findings belonged to the university for which he worked and his research was not akin to a journalist sources or to a lawyer’s duty of confidentiality. There was no violation of Article 10. In the ‘Hadjianastassiou’ case the Strasbourg Court made it clear that the State was to be afforded a very wide margin of appreciation when the protection of national security was in issue. The applicant had been convicted and sentenced for having disclosed military secrets. The leaked information was of very minor irnportance, but the Court concluded that any disclosure of State secrets was apt to a cornprornise national security and found no violation. In two cases concerning the publication of Peter Wright’s book, the newspapers concerned cornplained of a violation of Article 10 arising from the action by the Attorney General in bringing breach of confidence actions and seeking injunctions restraining publication of extracts of the book. Of particular significance was a deciSion of the Court of Appeal that the injunctions against The Observer and The Guardian bound all the media within the jurisdiction of the English courts and that any publication or broadcast of the Spycatcher material would constitute a criminal contempt of court. Despite the arrival in the United Kingdom of copies of the book imported from outside the country, the injunctions were kept in force until October 1988. For the first period the Strasbourg Court ruled by fourteen to ten that the risk of material prejudicial to the security services existed and that this justified the imposition of injunctions. For the remaining period, the decision was unanimous that there was a violation of Article 10; the material could no longer be regarded as likely to prejudice the security services since the book was freely circulating in the United States. The Court has also examined the the applicants use of copyright were fashion material photographers on the internet. who had In Ashbytaken Donald and others v France, photographs at a fashion show and then put them on their website with the intention of selling them. This was held to be an infringement of copyright of the fashion houses.Court upheld the right of the state to enforce the copyright law. Similarly, in a case involving the file sharing website ‘Pirate Bay’, the court found the case inadmissible as there were weighty reasons for the state to protect the property rights of the copyright holders.

62
Q

Freedom of Expression: Whistle blowers

A

In a number of cases where civil servants had publicly criticized their employers and suf_ fered disciplinary measures,the Commission accepted that State ernployees and service personnel have a special ‘duty of discretion’, meaning that their freedom to criticize government policies in a public manner is curtailed. Nonetheless, restrictive measures must be proportionate, and the Inotives of the person disclosing the information and the ability to substantiate his or her criticisms are relevant considerations. Criticisms which are made to a more limited audience, for example the conunanding officer of military personnel, require a greater degree of tolerance, even if expressed in strong terms. The ‘Guja’ case was the first to deal explicitly with the practice of whistle-blowing.148 The applicant was the head of the press office in the Moldovan Prosecutor General’s Office. There were concerns about corruption in the practices of law enforcernent agencies. Guja saw a letter from a very senior politician which sought to bring pressure on the prosecutor to terminate pending prosecutions against certain police officers. A report concerning two such letters was published in a newspaper, and Guja admitted that he had given copies to the press. He argued that he had acted in good faith, that the letters were not confidential, and that he had acted in line with the President’s anti-corruption drive. The applicant was dismissed from his employment, and his legal proceedings seeking reinstatement failed. He complained of a violation of Article 10. The Grand Chamber, in a unanimous judgment finding a violation of Article 10, said: the Court notes that a civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest. The Court thus considers that the signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large. In the light of the duty of discretion [owed by a civil servant], disclosure should be made in the first place to the person’s superior or other competent authority or body. It is only where this is clearly impracticable that the information could, as a last resort, be disclosed to the public.. .. In assessing whether the restriction on freedom ofexpression was proportionate, therefore, the Court must take into account whether there was available to the applicant any other effective means of remedying the wrongdoing which he intended to uncover.

63
Q

Freedom of Expression: Obscenity and Blasphemy

A

In the Handyside case the Strasbourg Court noted that there was no uniform European concept of ‘morality’ and made it clear that Contracting Parties would enjoy a wide margin of appreciation in assessing whether measures were required to protect moral standards. This approach was followed in the Müller case, which concerned an exhibition of contemporary art including three paintings depicting sexual acts, seized by the authorities on the grounds that they were obscene. The Strasbourg Court found that it was not unreasonable for the Swiss courts to have found the paintings liable to offend the sense of sexual propriety of persons of ordinary sensitivity. As a result, the imposition of fines did not violate Article 10. The expression under consideration in the Wingrove case 157 was a video made by the applicant portraying a woman, dressed as a nun and described in the credits as ‘Saint Teresa’ (of Avila), having an erotic fantasy involving the crucified figure of Christ. The video was refused a certificate for distribution by the British Board of Film Classification on the grounds that it appeared to contravene the British blasphemy law, in that the Board considered that its public distribution would outrage and insult the feelings of believing Christians. The Strasbourg Court did not consider that there was yet suffcient common ground in the legal and social orders of the Contracting Parties to conclude that a system allowing a State to impose restrictions on the propagation of material on the basis that it was blasphemous was, in itself, incompatible with the Convention. A wider margin of appreciation was generally available to Contracting Parties when regulating freedom Of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion, since the authorities were in a better position than the international judge to assess what was likely to cause offence to believers in each country. Having viewed the film itself, the Strasbourg Court concluded that the reasons given by the British authorities to justify the measures taken could be considered as both relevant and sufficient for the purposes of Article 10(2). However, in the Vereinigung Bildener Kiinstler case,158 the Strasbourg Court, by four votes to three, found a violation of Article 10 where the Austrian authorities had prohibited the continued exhibition of a large collage on display in a public gallery, which depicted public and religious figures engaged in sexual activity. The Court seems to have been influenced by the fact that the art installation was ‘some sort of counter-attack against the Austrian Freedom Party’. The dissenting opinions of Judges Spielmann and Jebens took the view that the artwork lost its protection under Article 10 because of its failure to respect the human dignity of certain of those portrayed. One of the problems of the cases concerned with obscenity and blasphemy (particularly the latter) is that the earlier case-law of the Strasbourg Court came very close to establishing a right not to be insulted by others in relation to religious feelings. This is certainly one conclusion that can be drawn from the Court’s approach to the film Das Liebeskonzil in the Otto-Pretninger case,162 and to the filin ‘Visions of Ecstasy’ in the Wingrove case. A preferable way to deal with such cases would be to offer no protection to the advocacy of religious hatred. There is a line of cases which suggests that the Strasbourg Court is not fully wedded to the notion of protecting a right not to be insulted by others in relation to religious feelings, but is rather concerned with respect for freedom of expression on the one hand while securing the right of others to respect for their freedom of thought, conscience, and religion. Someone writing critically about religion, but without advocating or inciting hatred, does not interfere with the rights protected by Article 9. is therefore little to balance. The beginnings of this approach can be seen in the IA case,165 in which the Strasbouro Court found by four votes to three no violation of Article 10 where the Turkish authorities had convicted of blaspherny the author of a book which contained critical remarks about aspects of Islam. Flhe Court draws on its judgnrnts in the Otto-Prentinger and IVingrov•e cases in noting that ‘as a Inatter of principle it may be considered necessary to punish improper attacks on objects Of religious veneration.’ 166 But the Court does go on to indicate that the judgment of the Court is based not on ‘contents that offend or shock, or a “provocative” opinion, but also constitute an abusive attack on the Prophet of Islam.
The joint opinion of the dissenting judges invited the Court to reconsider the ease-law in this area which ‘seems to place too much emphasis on conformism or uniformity of thought and to reflect an overcautious and timid conception of freedom of the press. By contrast, in the Gilliewski case,169 the Strasbourg Court unanimously found a violation of Article 10 as a result of the prosecution of an author for defamation. The offending material was a critical analysis of Pope John Paul Il’s encyclical ‘The splendour of truth’. The Court characterized the material as not being gratuitously offensive, insulting, or inciting disrespect or hatred.170 Klein case 171 concerned a response by a journalist and film critic to protests by Archbishop Sokol about the showing of, and publicity for, the film ‘The People vs. Larry Flint’. This resulted in complaints. Criminal proceedings were brought against the applicant; he was convicted. His appeals were unsuccessful. The Strasbourg Court unanimously found a violation of Article 10, noting that the applicant’s comments ‘neither interfered with the right of believers to express and exercise their religion nor did it denigrate the content of their religious faith. The Strasbourg Court was spared the diffculty of adjudicating on the twelve cartoons of the prophet Mohammad published in the Danish newspaper Morgenavisen Jyllands-Posten,173 when it ruled that the applicants had no standing to complain about their publication. 174 Had the merits of that controversy come before the Strasbourg Court, it is certainly arguable that the publication of the cartoons did not interfere in any way with freedom of religion, and freedom to manifest religious beliefs. This would have left the Strasbourg Court to elaborate the concept of insult to a religion, and the dividing line between the expression ofviews, here in art form, which are offensive to many Muslims but legitimate under Article 10, and matters which are likely to incite religious hatred which are not. The case would also have required the Strasbourg Court to consider positive obligations, since the complaint was that the Danish authorities had not intervened to prevent or punish the publication of the cartoons, when they should have done in order to respect their religious sensitives.

64
Q

Freedom of Expression: Advertisement

A

The Strasbourg Court has recognized that advertising performs a useful function in soci ety, namely to provide individuals with the means of discovering the characteristics Of services and goods on offer. Nevertheless, it may sometimes be restricted, especially to prevent National authorities wi have a wide margin of appreciation when the adve r ts are purely commercial. That margin will be reduced where the advertis ve a wider public interest In ‘Animal Defenders International v United Kingdom’, the Strasbourg Court found that a ban of an advertisement against the use of anilnals in advertising was proportionate. It found that a general measure such as the ban on political advertising could be proportionate. The Court examined the legislative choices made by the State. The more convincing the justifications for a general measure, the less important its impact in an individual case.The Court found that the scrutiny by the domestic bodies, the limitation of the ban to paid, political advertising on television and radio, the availability of alternate media and the risk of abuse and arbitrariness if the limitation was widened to social advocacy groups meant the general measure was proportionate.188 It rejected the applicant’s argument that the broadcast media was not as open to the influence of powerful wealthy interest groups as it was once was. It noted that despite a move away from broad prohibitions, there was still a lack of consensus in Europe on the regulation of political advertising. The Court did not explicitly overrule the TV Vest case, but used the lack of consensus in States to give the UK a margin of appreciation as to how it implemented restrictions on political advertising. The concurring opinion of Judge Bratza agreed with the focus on the general measure and expressed his doubts about the the judgment. He thought Murphy preferable. However, the dissenting opinion preferred Tierfabriken and could not see how an almost identical prohibition in Tierfabriken was a violation but there was not a violation in the UK. They are critical of what they see as double standards when the Court should be setting minimum standards. They found that the measures were disproportionate. They argued that parliamentary debate and scrutiny of a general measure does not guarantee compatibility with Convention rights and democracy is not helped by well-intentioned paternalism.

65
Q

Freedom of Assembly: Positive Obligations

A

The Strasbourg organs have long held that there are positive obligations to secure the effective enjoyment of the rights contained in Article 11. In the ‘Plattform Arzte fur das Leben’ case, an association of doctors which campaigned against medical termination of pregnancy with a view to securing changes in the Austrian legislation complained of violations of Article 11 when two demonstrations were disrupted by counter-demonstratraations despite a significant police presence. One issue which arose in the case was the extent to which a contracting Party is required under Article I l to intervene to secure conditions permitting the exercise of the right. The Strasbourg Court said: Genuine, effective freedom of peaceful assembly cannot… be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article I l . . .. Article I l sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be. In the Djavit An case, the Court simply said:..the Court considers that, although the essential objective of Article I l is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights It is clear that positive obligations apply in the fields both of the right to peaceful assembly and of freedom of association: the Court has often reiterated that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective.. .. It follows from that finding that a genuine and effective respect for freedom of association cannot be reduced to a mere duty on the part of the State not to interfere; a purely negative conception would not be compatible with the purpose of Article 11 nor with that of the Convention in general. There may thus be positive obligations to secure the effective enjoyment of the right to freedom of association…even in the sphere of relations between individuals.. ..Accordingly, it is incumbent upon public authorities to guarantee the proper functioning ofan association or political party, even when they annoy or give offence to persons opposed to the lawful ideas or claims that they are seeking to promote. Their members must be able to hold meetings without having to fear that they will be subjected to physical violence by their opponents. Such a fear would be liable to deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community, In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right of association. The Court has also reiterated that the State is under a positive obligation to protect private employees from dismissal there is also a positive obligation on the authorities to provide protection against dismissal by private employers where the dismissal is motivated solely by the fact that an employee belongs to a particular political party (or at least to provide the means whereby there can be an independent evaluation of the proportionality of such a dismissal in the light of all the circumstances of a given case.

66
Q

Freedom of Assembly: Unlawful Conduct by Demonstrators

A

The Court has examined the detention of protestors on their way to a protest. In the Scllwabe and M.G case,49 the applicants on their way to protest at a G8 summit. ‘IN elhey were stopped and searched by the police. “lhey had banners asking for freedom for all prisoners’ and ‘free all now’, and the police stated they resisted arrest. The applicants argued that their detention was to prevent them attending the protest rather than Prevent a criminal offence. The Court found that the evidence of the possible violent intentions of the applicants was ambiguous at best and they had no previous convictions. It noted that the possibility of violent protesters joining a peaceful protest did not remove the pro. tection of Article l l. It went on to find that the G8 protest was concerned with issues of important public interest and that the five-dav detention of the applicants was disproportionate when considering the aim of public safetv. The Court had already found the detention was unlawful under Article 5 and that less restrictive rneasures could have been taken such as removal of the banners. It may also be a violation of Article Il if there is a conviction for the organization of a protest where there has been violence, but the organizers were not involved and the intention had been for a peaceful protest. In the Gun and others* I case, the applicants organized a protest against the continued detention of Ocalan, the leader of the PKK, which is designated as a terrorist organization in Turkev. The protests were suspended. However the applicants organized a meeting where a pre« staternent was read out. police ordered the demonstrators to disperse but allowed the

67
Q

Freedom of Assembly: Defining Associations

A

Article I l protects the right to ‘freedorn ot association others’. Put broadly, and subject to the provisos set out in the second paragraph, this constitutes the right to choose whether or not to form and join associations such as political parties and trade unions, and also other organizations, such as lodges of i•reernuasons. The case-law on freedom of association addresses th ree core tvpes ot association: ( I ) politi. cal parties; (2) trade unions; and (3) other associations. “Ihe essence of of association is that ‘citizens should be able to create a legal entitv in order to act collectively in a field of mutual interest.’” So it is inherent in the concept of freedotn ofassociation that then is a right to form associations, and for those associations to be recognized in the national legal orders. If the issue arises, it will be for the Strasbourg Court to decide whether an applicant constitutes an association for the purposes of Article 11 •
The term ‘association’ . ..possesws an autonotnou« tneaning; the classification in national law has only relative value and constitutes no tnore than a starting point. In the Chassagnou case, the French Goverrunent had argued that associations connnunales de chasse agréés61 were public law associations With the powers of public authorities and so fell outside the concept of associations in Article I l. But the Strasbourg Court, while accepting the public law aspect of the associations, concluded that they were groupings of private individuals who wished to pool their land for the purpose of hunting. They were accordingly associations within the scope of Article 11. However, professional regulatory bodies set up by statute which remain integrated within State structures will not be associations for the purposes of Article 11, particularly where there is no corresponding prohibition on establishing an association of professionals in the private sector. Where an issue arises as to whether an association is a public law or a private law association, the Strasbourg Court will look to see which characteristics predominate. ‘Ihe issue arose in the Sigurjénsson case,” which concerned the required membership of ‘Frami’ as a precondition to obtaining a licence to operate a taxi. The association had both public law and private law characteristics. It exercised certain functions under the legislation applicable to the provision of taxi services, but was also fully autonomous in determining its own aims and procedures. In particular, it exercised a number of functions designed to protect the interests of its members, and so operated much like a trade union. The Strasbourg Court did not decide that it was a trade union, but concluded that its character was predominantly that of a private law organization and so constituted an association for the purposes of Article 11. The Strasbourg Court has found no difficulties in regarding political parties as being associations for the purposes of Article 11 :. . . even more persuasive than the wording of Article 11, in the Court’s view, is the fact that political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system,… there can be no doubt that political parties come within the scope of Article 11.

68
Q

Freedom of Assembly: Registration

A

There is nothing improper in Contracting Parties requirino registration of associations, If whatever their purpose, although any decision to refuse registration will be an interference with the freedom of association which will require justification. The Sidiropoulos case67 concerned applicants of Macedonian ethnic origin who were living in Greece; they sought to register an association with broad objectives to promote Macedonian historical and cul- tural heritage. The refusal was based on a perceived incompatibility between the association’s objects and the Greek national interest, in particular suggestions that the association disputed the Greek identity of the region of Macedonia. On appeal, the refusal was upheld llcs

on the ground that the true intention of the founders of the association was to underso mine the territorial integrity of Greece. lhe Strasbourg Court accepted that the refusal was grounded in law and met one of the legitimate aims set out in Article 11(2), but did

ate not agree that refusal to register (a fundamental interference with freedom of association) was necessary in a democratic society. The Court recognized that the founders ofthe association regarded themselves as belonging to a minority in Greece, but this could not be ur- regarded as constituting a threat to democratic society. was a violation ofArticle I l. ing Similarly in a case against Bulgaria, 8 an organization wished to re-register after previously being dissolved in a manner that was found by the Strasbourg Court in a previous jUdgment to be a violation of Article 11.69 The Court applied the principles established age in the previous case-law including the necessity of protecting pluralism and the limited margin of appreciation States have when attempting to justify a decision to not register an association. Separatist ideology was not a justifiable ground for a failure to register an

association.70 In this case, the reasons given where not sufficient to be a proportionate measure and so violated Article l l.

The national law regarding registration must be clear in order to comply with the law. fulness requirement under Article l l. In the Church of Scientology Moscow case,71 the applicant Church was repeatedly refused registration on the ground, among other things, that it had submitted an incomplete set of documents. Despite requests, the authorities would never specify which documents were missing. This procedure was repeated until the deadline for registration expired. In the subsequent proceedings brought by the Church, the District Court held that the applicant had not cornplied with national law in that the application for re-registration only included copies, rather than originals, of the charter and registration certificate. “l he Strasbourg Court found a breach of Article I I because the domestic law was not ‘fornullated with sufficient precision to enable the citizen to foresee the consequences which a given action may entail and to regulate his or her conduct accordingly.’ 72 Ibe requirement to submit the original documents did not follow from the text of the national law, and no other regulatory documents which might have set out such a requirement were referred to in the domestic proceedings. It was not mentioned in the grounds for the refusal advanced by the Moscow Justice Department or in the Presidium’s decision remitting the matter for a new examination, but appeared for the first time in the District Court’s judgment. In these circumstances, the Court was unable to find that the domestic law was formulated with suffcient precision enabling the applicant to foresee the adverse consequences which the submission of copies would entail.

69
Q

Freedom of Assembly: Political Parties

A

In the case of the United Communist Party of Turkey73 the Strasbourg Court rejected the respondent State’s argument that Article I l applied only to trade-union-type associations, and held that political parties also fell within its scope and were, indeed, entitled to a high level of protection because of their important role in any democracy.

mne Party had been dissolved by the Turkish Constitutional Court on the grounds, first, that the word ‘Communist’ in the title was objectionable and, secondly, because the Party’s manifesto had distinguished between the ‘Turkish’ and the ‘Kurdish’ nations; in Turkey, the promotion of separatism is unconstitutional. lhe Strasbourg Court considered that a political party’s choice of name could not in principle justify a measure as drastic as dissolution in the absence of other relevant and suffcient circumstances. On the second point, since the Party had advocated a political, rather than a violent, solution to the Kurdish problem, and one of the principal characteristics of democracy was the possibility of resolving a country’s problems through dialogue, there could be no justification for hindering a political group solely because it sought to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find,according to democratic rules, solutions capable of satisfying everyone concerned.” The dissolution of the Party was, therefore, disproportionate and contrary to Article 11.75 The Strasbourg Court views pluralism as being at the heart of the concept of democracy, which it upholds; political parties are seen as vital participants in the process of debate and dialogue which underpins participatory democrac .

The Court has also found that a State may interfere in the internal affairs of a political party where an association has failed to comply with reasonable legal formalities or due to prolonged internal conflict in the organization. However, in Republican Party ofRussia v Russia,76 where no offcial complaints had been made about the political party in question, the Court found that any such interference should be proportionate and the authorities:

should not intervene in the internal organisational functioning of associations to such a far-reaching extent as to ensure observance by an association of every single formality provided by its own charter. In December 1999, following a survey Of the practice among countries which cooperate with the Commission, the Venice Commission78 adopted a set of guidelines on the dissolution of political parties.79 The guidelines recognized that:

Prohibition or dissolution Of political parties can be envisaged only if it is necessary in a democratic society and if there is concrete evidence that a party is engaged in activi- ties threatening democracy and fundamental freedoms. lhis could include any party that advocates violence in all constitutional forms as part order Of its through political armed programme struggle, or terrorism any party or the aiming organ-to

appropriate Judicial DOdY m a proceuure onermg guarantees ot due process.

In the Rcfah Partisi case,82 the Grand Chamber, in what some regard as a controversial judgment,83 unanimously took the view that it was compatible with Article 11 to dissolve the applicant political party, which at the time of dissolution had actually been in Power for one year as part of a coalition government. The leaders of the Refah Partisi had declared their intention to establish a plurality of legal systems in Turkey based on differences in religious belief and to establish Islamic law (Sha’ria), a system of law which was in marked contrast to the values embodied in the Convention. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy. . .. In view of the very clear link between the Convention and democracy no one must be authorized to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole. Refah Partisi’s policies and anti-secular stance could be considered dangerous for the rights and freedoms guaranteed by the Convention, and the real prospect that it would implement its programme after gaining power justified the Constitutional Court’s action.

70
Q

Freedom of Assembly: Membership of a Political Party

A

In the Redfearn case,93 the Court examined the issue of exclusion from employment due to membership of a political party. The applicant was a member of the British National Party (BNP), and was elected a councillor for the partv in local elections. His main ernployment was as a bus driver and he worked for a private company, which carried out services for the local authority. BNP policies advocate an immigrant free UK and at the relevant time its membership was limited to white nationals. aMany of the passengers on the buses were of Asian origin. After the applicant had been elected as a councillor for the BNP, his employment was terminated. The applicant argued that his political beliefs had never impacted on his professional activities and the cornpany acknowledged that he never had any com- plaints made against him. The cornpany argued that there was potential for problems arising from the applicant’s political activities and his beliefs gnay have impacted negatively on their passengers, employees, and business. •Ihe UK does not include political belief as a protected characteristic in equality legislation and at the time of the case, did not include it as an exception to the rule that claims cannot be brought for unfair dismissal within the first year of employment and so his claim for unfair dismissal failed.

The Court underlined that with regard to positive obligations under Article I l there may be sensitive social and economic factors, which mean that the State has a wide margin Of appreciation. It will examine if measures taken by the State are ‘reasonable and appropriate’. The Court noted that the company were placed in a diffcult position due to the applicant’s political beliefs. However, there was no evidence that the applicant’s political beliefs had impacted on his work and it was admitted he was a good employee, It found that a claim for unfair dismissal would be an appropriate remedy but that the law in the UK was deficient in the protection it provided for employees in regard to association with a political party. ‘Ihe one year qualifying period for unfair dismissal meant he could not bring a case under the rules and nor did he fit into the exceptions which included race, religion, and sex but not

opinion. The Court held that the UK had to amend its law in such a way so that the Article I I rights are effectively protected. However, in a dissenting opinion,94 several judges believed the majority had expanded the positive obligation too far in requiring a free standing claim based on political belief with no temporal limitations. They held the UK was within its wide discretion in having a qualifying period and its exceptions to it. In Article 14 jurisbeen prudence, the Court had accepted certain grounds for difference of treatment carried more s and weight95 and so it should be open to the UK government to apply similar principles to the e of a grounds for exceptions under employment legislation.

71
Q

Freedom from Discrimination: Conceptual Issues

A

Until the judgment of the Strasbourg Court in the Belgian Linguistic case, 13 there was some doubt as to the relationship between Article 14 and the Articles which define the other rights and freedoms guaranteed. Article 14 does not prohibit discrimination as such, in any context, but only in ‘the enjoyment ofthe rights and freedoms set forth in this Convention’. on the Other hand, did Article 14 only come into play if there had been a violation of one of those rights? view that Article 14 had such a subsidiary role, advanced by the respondent State before the Court in the Belgian Linguistic case, derived some support from certain earlier decisions of the Commission.14 However, this interpretation would, as the Commission itself argued in the Belgian Linguistic case, have deprived Article 14 of its effectiveness, and it was rejected by the Court. The breach of Article 14 does not presuppose the violation of the rights guaranteed by other Articles of the Convention. While it is true that this guarantee has no independent existence in the sense that under the terms of Article 14 it relates solely to ‘rights and freedoms set forth in the Convention’, a measure which in itself is in conformity with the requirements of a substantive Article enshrining the right or freedom in question may nevertheless infringe Article 14 when read in conjunction with it for the reason that it is of a discriminatory nature. Thus, persons subject to the jurisdiction of a Contracting Party cannot draw from Article 2 of Protocol I the right to obtain from the public authorities the creation of a particular kind of educational establishment. Nevertheless, a Contracting Party which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14. In such cases there would be a violation of a guaranteed right or freedom as it is proclairned by the relevant Article read in conjunction with Article 14. No distinctions should be made in this respect according to the nature of these rights and freedoms and of their correlative obligations, and whether the respect due to the right concerned implies positive action or mere abstention. is clearly shown by the very general nature of the terms employed in Article 14; ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured’.Thus to summarize, while there can never be a violation of Article 14 considered in isolation, there may be a violation of Article 14, considered together with another Article of the Convention, in cases where there would be no violation of that other Article taken alone. Discrimination is prohibited, not only in the restrictions permitted, but also in laws implementing the rights guaranteed, even if those laws go beyond the obligations expressly provided by the Convention.
A second, and more diffcult, problem of interpretation raised by Article 14 was also dealt with by the Court in the Belgian Linguistic case. What forms of differential treatment constitute ‘discrimination’? To argue that Article 14 prohibits all inequalities oftreatment based on the grounds stated would lead to manifestly unreasonable results, since the inequality might actually be designed to benefit the less privileged class. For example, the provision of additional educational facilities for the children of poorer families would not necessarily constitute discrimination. On the other hand, ifonly certain forms of inequality are prohibited, by what objective criteria can they be identified? On this issue, the Court said: In spite of the very general wording ofthe French version (sans distinction aucune’), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognized. This version must be read in the light of the more restrictive text of the English version (‘without discrimination’). In addition, and in particular, one would reach absurd results were one to give Article 14 an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted. complaints under Article 14 are most frequently paired with Article 8, followed by Article I of Protocol l , and Articles 10 and 6. Finally, it should be noted that the grounds listed in Article 14 are not exhaustive. Discrimination based on any ‘other status’ is also prohibited. But precisely what is meant by a personal characteristic is one of the troublesome aspects of Article 14. There is conflicting authority on the meaning and extent of ‘other status’. A line of case-law seemed to suggest a narrow construction, meaning that consideration of discrimination with regard to ‘other status’ is in issue, the basis of comparison must relate to a personal characteristic. However, another line of case-law developed which adopted a much wider approach. Taking into consideration the wide meaning that may be implied from the French text, toute autre situation, the Engel-O case found that the list set out in Article 14 was merely illustrative and other status could include any situations including military rank, as was the case in Engel. The later case of ‘Rasmussen v Denmark’ noted that there is not even a need in some cases to determine which ground is being used. Court attempted to reconcile these two lines of authority in the Carson case,where the Strasbourg Court accepted that residence, like domicile and nationality, is an aspect of
personal status, and will ground a complaint of differential treatment. It would seem from Carson that there is no forrnal requirernent to establish a personal characteristic and personal status is a better tern) to describe those grounds which fall under ‘other status’. rlhis would include where the ground is based on personal choice. However, case-law since Carson has continued to use different approaches to ‘personal status’.

72
Q

Freedom from Discrimination: Complaint of Discrimination

A

Article 14 only applies in respect of ‘the enjoyment of the rights and freedoms as set forth’ in the Convention, including its Protocols. But there is no requirement that there is a breach of another Convention right. An example of the modern formula used by the Strasbourg Court can be found in the Kafkaris case: The Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application ofArticle 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature…. Accordingly, for Article 14 to become applicable it suffces that the facts of a case fall within the ambit of another substantive provision ofthe Convention or its Protocols. In the Stec case,59 the Court made it clear that there was no requirement under, for example, Article 1 of Protocol 1, to set up a system of social security or to pay welfare benefits of any particular kind or amount. However, if a State did decide to exceed its Convention commitments, and provide for the payment of a welfare benefit, it had to ensure that the terms Of entitlement to the benefit were not discriminatory. The applicants in that case were complaining that different amounts of an industrial injury benefit were paid to men and women. When women reached the statutory retirement age of sixty, they became entitled to a lower rate Of benefit. The statutory retirement age was sixty-five for men, however, so that men continued to be entitled to the higher rate of industrial injury benefit for a longer period. The Strasbourg Court held that although there was no obligation on the State under the Convention to provide for an industrial injury benefit, if such a benefit did exist, a person who was entitled to it under the terms of national law could claim it as a ‘possession’ within the meaning ofArticle I of Protocol 1. It therefore fell within the ‘scope’ of the Convention and Article 14 therefore applied.

73
Q

Freedom from Discrimination: Article 14 Reason for discrimination

A

Article 14 includes a list of prohibited grounds of discrimination: ‘sex, race, colour, lan- guage, religion, political or other opinion, national or social origin, association with a national minority, property, birth’. The list of prohibited grounds is not exhaustive, however, as the Article also states that discrimination based on ‘other status’ is prohibited. The French version, ‘toute autre situation’, is even broader. In the Kjeldsen, Busk Madsen and Pedersen case, the Strasbourg Court established that to fall within the concept ‘other status’, the difference in treatment had to be based on ‘a personal characteristic by which persons or groups of persons are distinguishable from each other. The Court and Commission have held that such characteristics as illegitimacy, sexual orientation,69 disability and health status 0, marital status,71 country of domicile or residence,72 immigration and refugee status,73 remand and convicted prisoners,74 and the suffering from the psychological harm caused by child abuse,7S all constitute ‘other status’.

The open-ended nature of the phrase ‘other status’-6 can make it difficult to apply in some cases. The Sidabras and Diautas case” illustrates the differences of view which can arise. Ihe case concerned the application of laws in Lithuania designed to restrict the activities of former KGB officers. Both had been dismissed fronl Governrnent ernployment when it was established that they were former KGB employees. A consequence of the application of the legislation to them was a restriction on their applying for various jobs in the private sector for a period of ten years. Ihey argued that this breached their rights under Article 8 either taken alone or when read

with Article 14. The Strasbourg Court chose to consider the claims under Article 8 when read with Article 14 because the applicants ‘alleged discrimination in this respect’. The Court concluded that the cornplaints were within the scope of Article 8, and so considered the Contracting Party’s convliance with Article 14. The Court recognized the legitirnate interest of the Contracting Party in regulating employment conditions both in the public and private sectors, though the Convention does not guarantee a right of access to a particular profession. The Court also acknowledged that under Article 10 of the Convention a dernocratic State had ‘a legitilnate interest in requiring civil servants to show loyalty to the constitutional principles on which the society was founded. As it had in other cases, the Court recognized the political context of the emergence of countries of central and eastern Europe from totalitarian regimes. The restrictions on the employment of former KGB employees could be seen as pursuing the aim of protecting national security, public safety, the economic well-being of the country, and the rights and freedoms of others. However, the restrictions which applied to employment in the private sector went beyond what was reasonably needed to secure those aims. The scheme lacked ‘the necessary safeguards for avoiding discrimination and for guaranteeing adequate and appropriate judicial supervision of the imposition of such restrictions. No separate consideration of a violation of Article 8 was undertaken. rlhere were two dissenting opinions. Judge Loucaides did not consider that people who had worked for the KGB and people who had not worked for the KGB could be said to be in ‘analogous’, ‘similar’, or ‘relevantly similar’ situations. Judge Thonmssen took a similar view: The principle of non-discrimination, as it is recognized in European Constitutions and in. International Treaties, refers above all to a denial of opportunities on grounds of personal discrimination.

74
Q

Freedom from Discrimination: Sex and Gender

A

Where the basis for the difference of treatment is grounds of sex, the Contracting Parties enjoy no margin of appreciation and will find it very difficult to establish objective and reasonable justification. This can be illustrated by the Karlheinz Schmidt case. 109 The applicant complained that the system of requiring men to serve in the fire brigade or to pay a fire service levy in lieu violated Article 4 taken together with Article 14. The Court looked at the practicalities of the situation which was that men were not in practice required to serve, since there was no shortage of volunteers. But there remained the liability to pay the levy, which bore only on men and not on women. This difference of treatment on grounds of sex could hardly be justified. 110 Similarly in the Markin case, 111 the Court found that the exclusion of male military personnel from parental leave compared to female military personnel could not be justified either by a reference to the need to maintain the operational effectiveness of the armed forces or by reference to the State’s attitudes to gender roles: The Court has already found that States may not impose traditional gender roles and gender stereotypes… Moreover, given that under Russian law civilian men and women are both entitled to parental leave and it is the family’s choice to decide which parent should take parental leave to take care of the new-born child, the Court is not convinced by the assertion that Russian society is not ready to accept similar equality between mean and women serving in the armed forces.

75
Q

Freedom from Discrimination: Sex and Gender

A

Where the basis for the difference of treatment is grounds of sex, the Contracting Parties enjoy no margin of appreciation and will find it very difficult to establish objective and reasonable justification. This can be illustrated by the Karlheinz Schmidt case. The applicant complained that the system of requiring men to serve in the fire brigade or to pay a fire service levy in lieu violated Article 4 taken together with Article 14. The Court looked at the practicalities of the situation which was that men were not in practice required to serve, since there was no shortage of volunteers. But there remained the liability to pay the levy, which bore only on men and not on women. This difference of treatment on grounds of sex could hardly be justified.Similarly in the Markin case,the Court found that the exclusion of male military personnel from parental leave compared to female military personnel could not be justified either by a reference to the need to maintain the operational effectiveness of the armed forces or by reference to the State’s attitudes to gender roles: The Court has already found that States may not impose traditional gender roles and gender stereotypes… Moreover, given that under Russian law civilian men and women are both entitled to parental leave and it is the family’s choice to decide which parent should take parental leave to take care of the new-born child, the Court is not convinced by the assertion that Russian society is not ready to accept similar equality between mean and women serving in the armed forces. The Court also rejected the Government’s argument that allowing women parental leave and not men amounted to positive discrimination in favour of women. In contrast, in the Stec case, the Strasbourg Court held that it was permissible for the State authorities to treat men and women differently for the purposes of positive discrimination, in order to ‘correct factual inequalities between them’. The Court accepted that the reason for introducing a differential age of entitlement to the State pension for men and women in the United Kingdom for men and for women was to compensate women for the fact that, in general, they tended to spend longer periods of time than men out ofpaid employment and looking after children and other family members. It was therefore harder for women to build up the required number of qualifying years of National Insurance contributions. The difference in pensionable ages continued to be justified until such time as social conditions had changed so that women were no longer substantially prejudiced because of a shorter working life. This change, must, by its very nature, have been gradual, and it would be difficult or impossible to pinpoint any particular moment when the unfairness to men caused by differential pensionable ages began to outweigh the need to correct the disadvantaged position of women. According to the evidence before the Court, the State authorities had been within their margin of appreciation in deciding to wait until December 1991 before starting to move towards an equal pension age and in deciding to introduce the changes very gradually over a long period of time. The Court has also used Article 14 to underline the importance of highlighting the gender discrimination involved in a failure to protect in cases of domestic violence. The Court found a violation of Article 14 for the first time in a case involving domestic violence in Opuz v Turkey. The Court cited the United Nations Convention on the Elimination of Discrimination against Women and the United Nations Commission of Human Rights, stating that: bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the Violence suffered by the applicant and her mother may be regarded as gender-based Violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence. The Court made a similar finding in Eremia v Moldova,116 finding that the State had not simply failed to protect the applicant under Articles 3 and 8, but had also condoned the violence, reflecting a discriminatory attitude towards the applicant as a woman, The Judgments in these cases have developed the Court’s jurisprudence in line with other international bodies. The judgments recognise the social and structural inequality that helps to perpetuate domestic violence against women.

76
Q

Freedom from Discrimination: Race & Ethnicity

A

The Strasbourg Court is taking an increasingly robust approach to cases where racial or ethnic motivation is involved. As the Court has indicated, these are overlapping concepts. In the Timishev case, the Court said: Whereas the notion of race is rooted in the idea of biological classification ofhuman beings into subspecies according to morphological features such as skin colour and facial characteristics, ethnicity has its origins in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds. Discrimination on grounds of ethnicity is a form of racial discrimination, which is seen as a particularly serious form of discrimination. As a consequence, Contracting Parties are required to ‘use all available means to combat racism’, and no difference of treatment based on race or ethnicity is capable of being objectively justified. The increasingly robust approach of the Strasbourg Court can be illustrated in a number of Roma cases such as the ‘Secic’ case.The applicant was a Croatian national of Roma origin. He was attacked and injured; his attackers shouted racist abuse at him while attacking him. The police investigation was extremely dilatory, lasting more than seven years. No one was brought to trial for the attack. The Strasbourg Court affirmed the positive obligation of Contracting Parties to use their best endeavours to investigate attacks, even by private parties, which involved racial hatred. A failure to make any distinction between such attacks and ‘ordinary’ violence was a failure to make a vital distinction, and may constitute unjustified treatment which breaches Article 14 when read with Article 3. Such violation was found in addition to a violation of Article 3 alone concerning the lack of an effective investigation. Even in less dramatic factual situations, the Strasbourg requires v reasons for distinctions between nationals and non-nationals. In the ‘Andrejeva’ case, the Strasbourg Court held that, in the field of social security, differences in treatment between nationals and non-nationals would requires very good reasons.

77
Q

Freedom from Discrimination: Sexual Orientation

A

In ‘Vallianatos v Greece’, the Court did find a violation of Article 14. Ihe Court noted that a large number of European States have recognized same sex relationships in some legal form: The Court would point to the fact that, although there is no consensus among the legal systems of the Council of Europe member States, a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships. Nine member States provide for same-sex marriage. In addition, seventeen member States authorise some form of civil partnership for same-sex couples. As to the specific issue raised by the present case the Court considers that the trend emerging in the legal systems of the Council of Europe member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples… In other words, with two exceptions, Council of Europe Member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope. The Court was not convinced by the State’s reasoning for maintaining a difference Of treatment given the situation in Europe. The Court also took a more robust approach to the margin of appreciation in Vallianatos than it did in the Schalk case, underlining in Vallianatos that differences based solely on sexual orientation are unacceptable. The Court has taken a step forward in giving legal recognition to same sex relationships as Contracting States and non-European States increasingly move towards that position.

78
Q

Freedom from Discrimination: Discrimination & Minorities

A

The Strasbourg Court’s increasingly tough approach to discrimination cases involving differential treatment based to a decisive extent on race or ethnicity has already been noted. Those cases were decided on the individual circumstances presented. The focus of attention in a number of cases has been systematic ill-treatment of those of Roma origin, where evidence of their ill-treatment in a number of Contracting Parties has come before the Strasbourg Court. A development in the case-law, which may be based upon recognition that minorities need special and collective protection if their human rights are to be respected, warrants a discussion distinct from reference to individual cases involving discrimination on racial or ethnic grounds. In the ‘D.H.’ case, the complaints arose in the context of the attempts by the respondent State to address the question of the education ofchildren of Roma origin. The adopted solution was the creation of special schools. These were not, however, limited to Roma children; they were schools designated for children with learning difficulties who were unable to follow the ordinary school curriculum. Allocation to a special school was determined by an assessment made by a head teacher on the basis of tests which measured the child’s intellectual capacity, and required the consent of the child’s parent or guardian. Statistical evidence showed that more than half the pupils in the special schools were of Roma origin, and that in one of the school districts involved a child of Roma origin was twenty-seven times more likely to be in a special school than a child not of Roma origin. The applicants complained that the tests were not reliable, and that the parents had not been suffciently informed to give consent to placernent in a special school. The Chamber judgment looked at the cases on an individual basis, and found no violation of the Convention. The Grand Chamber judgrnent took an entirely different approach to the case, treating the problem as a collective or systemic issue affecting Roma children in general, exemplified by the situations of the applicants in the case before them. The Grand Chamber did not find that the authorities were motivated to discriminate; indeed there is some praise for the efforts made in the Czech Republic to address the issue. But the segregated educational system was seen to be a source of concern. The Grand Chamber considered that the tests might well be culturally biased, and was influenced by critical reports from the European Commission against Racism and Intolerance (ECRI) and the Council of Europe’s Commissioner for Human Rights. On the issue of parental consent, the Grand Chamber finds that there can be no waiver of the right not to be subjected to racial discrimination, even when that discrimination arose indirectly. By thirteen votes to four, the Grand Chamber finds a violation of Article 14 when read in conjunction with Article 2 of Protocol 1. This finding did not relate to individual cases, but to the applicants in general as members of the Roma community. A key significance in this case is in treating indirect discrimination as a phenomenon and in addressing the phenomenon rather than focusing on individual complaints. This collective rather than individual approach could have implications for many areas of the Court’s caseload. The reasoning of the majority in the case has been followed in subsequent cases involving the Roma community and education such as ‘Orsus v Croatia’ and ‘Horvath and Kiss v Hungary’. D.H has triggered a new approach to discrimination affecting minorities, and potentially to systemic problems of discrimination. Despite the robust dissenting criticism of the majority decisions in D.H and Orsus, the recognition of indirect discrimination brings the Court and Convention in line with other international bodies and much domestic law. It does appear to open the door to something close to a class action before the Strasbourg Court. The Strasbourg Court has used the pilot judgment procedure in a case, involving Article 14 along with Articles 8 and 13. The case involved the re-classification of the applicants as non-nationals after the breakup of the old Yugoslav Republic with fewer rights than those foreign nationals who were not nationals under the old territorial boundaries. The case is one of direct discrimination based on national origin. However, the recogni- tion of indirect discrimination by the Court may mean that the pilot judgment procedure is accessed in the future on the basis of a differential impact on a particular group in order to address systemic discrimination in a State.