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ECJ and ECHR Case Law: Freedom of Religion Freedom of ExpressionHate Speech- : 

ECJ and ECHR Case Law: Freedom of Religion Freedom of ExpressionHate Speech- Lecture III Parul Sharma

The ECJ and its Human Rights Jurisdiction : 

The ECJ and its Human Rights Jurisdiction

The EU Draft Charter: Contributions to the Debate : 

The EU Draft Charter: Contributions to the Debate The once clear distinction between the remit of the ECJ and that of the Court of Human Rights has disappeared and the expansion of the EU’s activities and competences, particularly in the third pillar areas, has given the ECJ a human rights dimension in areas also covered by the ECHR.

The creation of a human rights charter presents a number of problems, including: : 

The creation of a human rights charter presents a number of problems, including: • the need for such a charter, given existing human rights guarantees under international conventions; • the rights to be protected; • the form and legal status of the instrument, its relation to the EC Treaties and to the Council of Europe’s European Convention on Human Rights. • the risk of creating different systems of protection within the EU and the wider Europe, with possible damage to legal certainty; • mechanisms for monitoring compliance and dealing with breaches

Slide 5: 

Rulings of the ECJ have contributed to the jurisprudence of the ECHR as well as to the development of human rights protection in the EC legal order. For example, an ECJ judgment in 1994 was described as “a major contribution to the jurisprudence on Article 8 of the Convention [ECHR]”

Slide 6: 

The Court overruled a 1992 judgment of the Court of First Instance concerning the right of an individual not to undergo an AIDS test for pre-recruitment purposes and the right to keep secret one’s state of health.28 In the 1994 judgment the Court concluded that the rights of Mr X had been breached: where a person makes clear that he/she is not prepared to undergo a particular medical test, carrying out the test constitutes a breach of their human rights. The ECJ also insisted that this right had to be respected in its entirety: the Commission could not carry out an unwanted AIDS test, or any other test that might indicate the existence of an illness that the individual had refused to disclose.

Slide 7: 

The ECJ implied in a ruling in 1969 that human rights considerations were inherent in EC law when it stated that an Article in Decision 69/71 “contained nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court”. One author has suggested that the ECJ has been motivated to create a doctrine of fundamental rights in order to protect its sometimes fragile supremacy over the national law of the Member States. Bruno de Witte adds, however, that the Court’s activism was also simply a response to the Community’s “growing capacity to affect fundamental rights to an extent unforeseen at the time the European Communities were created”.

Slide 8: 

In the Internationale Handelsgesellschaft ruling in 1970 the ECJ decided that fundamental rights formed part of the general principles of Community law that it was obliged to uphold, and that it should be guided by the constitutional traditions of the Member States in safeguarding those rights. The Nold ruling reinforced this and also referred specifically to international treaties (though not to the European Convention specifically) which Member States had ratified as guidelines to be followed within the framework of Community law. No measure could have the force of law unless it was compatible with the fundamental rights recognised and protected by the Member States' constitutions. In the Rutili case in 1975 the Court referred explicitly to the ECHR. In the Wachauf case in 1997 the ECJ ruled that its review powers extended to the acts of Member States, to the extent that they fell within areas of Community law.

Slide 9: 

The liability of Member States to apply fundamental rights was made clear in the ERT case17, in which the ECJ ruled that States were obliged by EC law to respect fundamental rights when they implement it or when they rely on derogations from fundamental Treaty rules.

Case Law European Court of Human Rights : 

Case Law European Court of Human Rights

Slide 11: 

Kokkinakis v. Greece- May 1993. "As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a 'democratic society' within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

Cont. : 

Cont. "While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to 'manifest [one's] religion'. Bearing witness in words and deeds is bound up with the existence of religious convictions. (§31).

Slide 13: 

According to Article 9, freedom to manifest one's religion is not only exercisable in community with others, 'in public' and within the circle of those whose faith one shares, but can also be asserted 'alone' 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 [one's] religion or belief', enshrined in Article 9 would be likely to remain a dead letter."

Proselytism : 

Proselytism Larissis and others v. Greece February 1998."(.) Article 9 does not, however, protect every act motivated or inspired by a religion or belief. It does not, for example, protect improper proselytism, such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a Church (.)." (§45)

Ban on the prohibition of certain religions Manoussakis v. Greece, 26 September 1996.Prohibitive tendency of Greek legislation and case-law regarding the practice of the religion of Jehovah's witnesses."(.) They argued that a law which made the practice of a religion subject to the prior grant of an authorisation, whose absence incurred liability to a criminal sanction, constituted an 'impediment' to that religion and could not be regarded as a law designed to protect freedom of religion (.)." (§37).

Slide 16: 

"(.)The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. Accordingly, the Court takes the view that the authorisation requirement under Law no. 1363/1938 and the decree of 20 May/2 June 1939 is consistent with Article 9 of the Convention only in so far as it is intended to allow the Minister to verify whether the formal conditions laid down in those enactments are satisfied.

Slide 17: 

It appears from the evidence and from the numerous other cases cited by the applicants and not contested by the Government that the State has tended to use the possibilities afforded by the above-mentioned provisions to impose rigid, or indeed prohibitive, conditions on practice of religious beliefs by certain non-Orthodox movements, in particular Jehovah's Witnesses. (.)" (§§47 and 48)

Permitted limitations (Article 9(2) ECHR) : 

Permitted limitations (Article 9(2) ECHR) Sunday Times v. UK, 26 April 1979. Limitations "prescribed by law"."(.) Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

Slide 19: 

Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice." (§49).

Slide 20: 

RIGHT TO EDUCATION Martins Casimiro and Cerveira Pereira v. Luxembourg, Court decision of April 1999. Refusal to waive the obligation to attend Saturday school of a child whose parents are members of the Seventh Day Adventist Church. "The Court reiterates in this respect that the State has a duty to ensure that children are able exercise their right to education (.). Moreover, when the right of the parents as regards their religious convictions conflicts with, rather than supports, the right of the child to education, the interests of the child take precedence.

Cont. : 

Cont. (.) the Court considers the refusal provided by law to grant the applicants a general waiver from Saturday school for their son is justified by the principle of protecting the rights and freedoms of others, and in particular the right to education, and the proportionality between the means used and the goal sought was reasonable. They thus constituted a limitation on the right of the applicants to exercise freely their religion that conformed with Article 9(2) of the Convention."

Islamic Head Scarf : 

Islamic Head Scarf Leyla Sahin v Turkey, 29 June 2004. The applicant, a medical student at the University of Istanbul, was denied access to courses and examinations because she was wearing the Islamic headscarf. She alleged that such denial infringed her right to express her religious convictions guaranteed under Article 9 of the ECHR.The Court observed that the ban on wearing the Islamic headscarf in teaching institutions constituted an interference in exercise of the right to express one's religious beliefs which is prescribed by Turkish law and which pursues the legitimate aims of protection of the rights and freedoms of others and protection of public order, "in view of the importance of upholding the principle of secularism and ensuring the neutrality of universities in Turkey." (§ 83)

Slide 23: 

To assess the necessity of such interference, the Court attached great importance to the specific characteristics of Turkish society: the fact that the majority of the population adheres to the Islamic faith and the existence of extremist political movements using religious symbols for political purposes. (§§ 108-110) In this context, the protection of secularism and pluralism in a university may be seen as meeting a "pressing social need" and the interference in question appears proportionate to the legitimate aims pursued. The Court thus held that there had been no violation of Article 9 of the Convention.

Hate Speech, the definition : 

Hate Speech, the definition The variation of Internet hate speech can be defined as extremely offensive personal insults and characterizations that are directed against an individual's or group's race, religion, ethnic origin, gender, or sexual preference, and which may incite violence, hatred, or discrimination. As such, this variety of hate speech constitutes more than merely the fair airing of information or viewpoints. Websites that provide examples of this pernicious kind of speech include those that promote the views of the Ku Klux Klan and other white supremacist organizations, sites that call for a revisionist look at the Holocaust, anti-gay sites, anti-abortion sites whose rhetoric is so extreme that they target abortion doctors for murder, and a variety of anti-religion sites.

Slide 25: 

Hate speech is a controversial term for speech intended to degrade, intimidate, or incite violence or prejudicial action against a group of people based on their race, ethnicity, national origin, religion, sexual orientation, or disability. The term covers written as well as oral communication.

Slide 26: 

Holocaust denial is outlawed in seven European countries as a form of hate speech, while the Council of Europe has passed laws against any type of revisionism, defined as denial or downgrading genocides or crimes against humanity.

Freedom of Religion v. Hate Speech : 

Freedom of Religion v. Hate Speech Sweden passed a constitutional amendment in 2002 which included sexual orientation in a list of groups protected from "unfavorable speech." The law protects heterosexuals, bisexuals and homosexuals equally. Further, chapter 15, Section 8 of Sweden's criminal code prohibits the expression of "disrespect" towards favoured minority groups. The law carries a penalty of up to four years of imprisonment. It requires no evidence of incitement to violence and lacks any objective standard for identifying "disrespect."

“Abnormal, a horrible cancerous tumor in the body of society." : 

“Abnormal, a horrible cancerous tumor in the body of society." Sometime in 2003, Pastor Ake Green delivered a sermon at his Pentecostal church in Borgholk, Sweden. He allegedly described homosexuality as "abnormal, a horrible cancerous tumor in the body of society." He described them as "perverts, whose sexual drive the Devil has used as his strongest weapon against God." He was charged with inciting hatred against a group of people on the basis of their sexual orientation. During 2004-JUN, Green was found guilty and sentenced to one month in prison.

Slide 29: 

“It is the opinion of this Court that Åke Green, through his statements, has deeply offended the homosexuals as a group and the purpose of his sermon was clearly aimed at showing disrespect for the homosexuals as a group.”

Views… : 

Views… Public prosecutor Kjell Yngvesson is reported as saying: "One may have whatever religion one wishes, but [the sermon] is an attack on all fronts against homosexuals. Collecting Bible [verses] on this topic as he does makes this hate speech." Christianity Today magazine reported: "In his defense, the pastor said he merely wanted to make clear the biblical view on homosexuality, not to express disrespect." Green's lawyer said that the law and conviction violated the pastor's religious freedom. Soren Andersson, president of a Swedish federation for lesbian, gay, bisexual, and transgender rights (RFSL), said that religious freedom never justifies offending people. He said: "Therefore, I cannot regard the sentence as an act of interference with freedom of religion."

Swedish Appeals Court overturns the conviction : 

Swedish Appeals Court overturns the conviction Swedish SC overturned, in February 2005, the conviction of the pastor Ake Green found guilty of violating the country's strict hate-speech law with a sermon that labeled homosexuality "a deep cancerous tumor in the entire society" and equated it with pedophilia.

Slide 32: 

The appeals court ruled that Sweden's law, which was enacted after World War II to protect Jews and other minorities from neo-Nazi propaganda and was only recently extended to gays, was never intended to stifle / choke open discussion of homosexuality or restrict a pastor's right to preach.

Supreme Court Acquittal : 

Supreme Court Acquittal The SC maintained that Green’s sermon was protected by freedom of speech and religion. Chair of the court, Justice Johan Munck, commenting on the case, said that the judges had taken into consideration earlier judgements passed down by the Court of the European Union in Strassbourg, France.  “If Ake Green had been convicted for incitement due to his sermon, then in all probability Sweden would have been rebuked in the European Court,” Munck said.

Cont. : 

Cont. “Considering the circumstances at hand, the Supreme Court finds that it’s likely that the European Court – if it were to adjudicate the case – would find it to be a violation of the European Conventions if Ake Green were convicted due to the statements in his sermon.”

ECJ on Freedom of Expression-article 10 in the ECHR : 

ECJ on Freedom of Expression-article 10 in the ECHR The freedom of expression cases decided by the European Court suggest a complex evaluation of the need for some uniform standards, particularly in reference to political speech, balanced with deference to local authorities on issues of artistic and commercial expression.

Slide 36: 

In Jersild v. Denmark for example, an inflammatory interview with local Ku Klux Klan members, who expressed their racist opinions and negative views of minorities, was deemed to have sufficient public merit to outweigh the insult to victims of the hate speech thus broadcast. While the Court recognized the "vital importance of combating racial discrimination in all its forms and manifestations," it also recognized the role of the press, which it called particularly important in a democratic society in which one of the essential foundations is freedom of expression. The Court said it is "incumbent" on the press to impart information and ideas of public interest, "otherwise the press would be unable to play its vital role of public watchdog."

Slide 37: 

This also means that the choice of media and reporting techniques is neither for the national nor the regional court, but for the journalists: "[A]rticle 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed." In particular, the Court endorsed the use of interviews, calling news reporting based on interviews one of the most important means whereby the press is able to play its vital role . . . . The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so. Thus, in the eyes of the Court, the racist remarks in question were not enough to justify censorship.

Slide 38: 

This common law and constitutional protection for the expression of opinions is echoed at European level in two cases brought against Austria by a journalist, Mr Oberschlick. In the first action (Oberschlick v Austria (No. 1) (1995) 19 EHRR 389), Mr Oberschlick had argued in a newspaper that a proposal by a politician for a 50% cut in family allowances by the State to immigrant mothers corresponded to the philosophy and aims of Nazism. The courts convicted Mr Oberschlick of defamation; in Austria, defamation is a crime, as well as a civil wrong. In doing so, the courts required Mr Oberschlick not only to establish the fact that the proposal for a cut in family allowance had been made but to prove the truth of his opinion or value judgment on it.

Slide 39: 

The European Court said that this infringed Article 10. Mr Oberschlick’s opinion was expressed within the context of a public debate on a political question of general interest and his contribution to that debate was protected. In other words, he would not have to show that the proposal in fact corresponded to the philosophy and aims of Nazism, merely that he believed it did.

Slide 40: 

Some years later, Mr Oberschlick described Mr Haider, leader of the far right Austrian Freedom Party, as a “trottel”, which roughly translates as an “idiot”. The Austrian courts determined that the mere use of the word itself was sufficient to justify conviction for defamation. This lead to Oberschlick v Austria (No. 2) (1997) 25 EHRR 357 where again the Strasbourg Court overruled the national courts.

Slide 41: 

Mr Haider was a controversial politician and Mr Oberschlick description of him followed a speech in which Mr Haider had stated that all the soldiers who served in World War II, whichever side they were on, had fought for peace and freedom and had contributed to founding Austria’s democratic society. Mr Oberschlick’s response to this was simply part of a political discussion provoked by the speech and amounted to an opinion, whose truth was not susceptible to proof. It was therefore protected by Article 10.

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