Jarna Petman
Faculty of Law
University of Helsinki
21 II – 11 III 2005
European Convention on Human Rights
Lecture Four
Mon 28 II 2005, 12.00-14.00
Rights come with exceptions, always, because we cannot govern by mere rules
¾ any definition of a right is either over-inclusive or under-inclusive
¾ exceptions are included into rights because we cannot predict the future and
because of the logic of rational argumentation
There is no apolitical way to decide whether to resort to the rule or the exception.
Absolute democracy does not exist anywhere: the fundamental rights of a person may be
infringed to protect the interests of the State or the rights of other persons.
When the ECHR was drafted, there was concern about the abuse of the freedoms → fear
that individuals would use their new freedoms to establish threats to the States themselves
→ limitations provisions:
¾ general, overarching provisions in Articles 15 and 17
¾ specific limitations clauses to particular rights and freedoms in Articles 8-11
The State may interfere with the rights in Articles 8-11 in order to secure certain interests.
For example, freedom of expression (in Article 10) may be subject to ‘such formalities,
conditions, restrictions or penalties’:
as are prescribed by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.
The criteria for a justifiable restriction on rights and freedoms
¾ any interference must be in accordance with or prescribed by law
¾ the restriction must be aimed to protect at least one of the legitimate interests listed
in the catalogue of grounds for restrictions
¾ the interference with the right must be ‘necessary in a democratic society’ (necessity
= ‘pressing social need’)
¾ the Court must assess that every restriction imposed is ‘proportionate’ to the aim or
interest pursued
‘Some compromise between the requirements for defending democratic society and
individual rights is inherent in the system of the Convention’.
¾ the problem of democracy’s self-defence
‘freedom of speech’
¾ restrictions to curtail the spread of Nazi views
¾ the Court has come to reconsider the risk associated with hate speech: Lehideux &
Isorni v. France (1998) and Jersild v. Denmark (1994)
¾ while the risk associated with fascist hate speech has waned, the Court has become
alive to the risk associated with incitement to separatist violence.
.
¾ Sürek v. Turkey (No. 2) (1999)
¾ a fine line separates the protection of democracy from the repression of political
dissent
‘militant democracy’
¾ national legislation provides that political parties which do not conform to
democratic principles are unconstitutional (e.g., the German Basic Law)
¾ Kommunistische Partei Deutschland v. Federal Republic of Germany (1957)
¾ United Communist Party of Turkey and others v. Turkey (1998)
¾ while the threat of Communism has waned, a new threat has stepped into the
Court’s interpretations: Islam
¾ Refah Partisi (Welfare Party) and others v. Turkey (1998)
o had become ‘a “centre” of activities contrary to the principles of
secularism’, a threat to the social order and the national security of the State
and thus its dissolution was necessary → the Court agreed
o three of the seven judges dissented
o Grand Chamber Judgment of 13 February 2003 offered a clear reendorsement of militant democracy and the dissolution of the party was
considered to have met a ‘pressing social need’ (because of opinion polls)
¾ the Court’s idiosyncratic construction of several Islamic principles
¾ the Court interprets the ECHR within the realities of its regional and global
context: it has replaced the traditional opponents of the Convention (Fascism and
Communism) with Islamic fundamentalism (which it equates with Islam in general)
‘freedom of thought, conscience and religion’
¾ Islamic headscarf: Dahlab v. Switzerland (2001) and Leyla Şahin v. Turkey (2001)
While the Court has deemed the Islamic faith a threat to pluralistic values in a democratic
society, it has deemed pluralistic values a threat to the Christian faith:
¾ Otto-Preminger-Institute v. Austria (1995) and Wingrove v. United Kingdom (1997)
The Court cannot overcome the paradox that it is prepared to subordinate the substantive
value of tolerance to the protection of other substantive values: it must privilege certain
substantive values above others (e.g., the ‘protection of the rights of Christians’) and
conceive of democracy merely as an instrument of such substantive values.
The neat scheme of right/derogation that is embedded in the Convention is constantly
undermined by the experience that there is no apolitical rule or standard that would set out
when to apply the right and when the derogation.
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