Procedural Law of Human Rights in National and International …MenuItemByDocId... ·...

FACULTY OF LAW Lund University

K Nowak 2018-10-11

Course Material

Procedural Law of Human Rights

JAMR 17 (15 ECTS)


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Table of Contents Introduction ............................................................................................................................................. 4

Course content .................................................................................................................................... 4

Learning outcomes .............................................................................................................................. 4

Teaching and assessment .................................................................................................................... 5

Format of examination papers ............................................................................................................ 6

Instructions for papers on judicial responsibility ................................................................................ 6

Instructions for seminars on judicial responsibility ............................................................................. 6

Instruction for seminar on topics of choice for final individual assignments ..................................... 7

Course Literature ..................................................................................................................................... 8

Books ................................................................................................................................................... 8

Electronic reader ................................................................................................................................. 8

Articles ................................................................................................................................................. 8

Suggested readings.............................................................................................................................. 9

Suggested readings (On the ECHR and on Courts and Politics) ..................................................... 9

Suggested readings (On Legal Writing) ........................................................................................ 10

Suggested Sources: ............................................................................................................................ 11

Moot Court instructions ........................................................................................................................ 12

Structure and presentation of a case .................................................................................................... 13

Structure ............................................................................................................................................ 13

Presentation ...................................................................................................................................... 13

Moot Court Groups ............................................................................................................................... 15

Moot Court cases .................................................................................................................................. 17

How to balance rights in court (Case I): Right to a fair trial .............................................................. 19

How to balance rights in court (Case II): Freedom of expression ..................................................... 27

How to balance rights in court (Case III): Freedom of thought, conscience and religion ................. 37

How to balance rights in court (Case IV): Right to family life and asylum ........................................ 49

How to balance rights in court (Case V): Right to assembly ............................................................. 57


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Introduction

Course content The course Procedural Law of Human Rights is a compulsory course within the Master’s Programme

in International Human Rights Law.

The course explores the concept of a fair trial and puts it in a theoretical as well as practical context.

Towards that end the students are taught how to claim a right in court, what to expect when facing a

trial and how various rights are balanced in court as well as out of court. These issues and the

individual responsibility of judges are highlighted using concrete examples e.g. such as when deciding

the limit of free speech and the limit of personal security in court. Issues of national sovereignty

versus international requirements are dealt with as well as the states double role as the provider of a

fair trial and at the same time acting as the defending party.

Legal case writing and research is studied both from a theoretical perspective applicable to

international law and from a practical aspect making and assessing legal arguments. The course

builds an understanding of how to apply general concepts of international human rights law and

sustaining these arguments with bordering international disciplines. The bulk of the teaching is

focused around the Council of Europe human rights system but also includes the Universal

Declaration on Human Rights and other global and regional sources to help build persuasive

arguments.

Learning outcomes The aim of the course is to provide students with the necessary skills to make compelling legal

arguments in court both orally and in writing using mainly legal sources but also other sources from

various associated disciplines such as e.g. history, political and social sciences. The course promotes

the capacity of students to use legal theory and method when making a critical legal argument based

on international law.

Knowledge and understanding

To pass examination the student shall show:

an understanding of the contents and implementation of the right to a fair trial

insight into major approaches in theorizing issues in procedural law

a thorough understanding of how the concept of fair trial impacts on the implementation of

human rights in general

an understanding of how the concept of a fair trial interacts with political decision-making

and democracy

an understanding of how different legal theories help to approach international human rights

law


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aptness to apply different theories to problems of international human rights law

Skills and abilities

To pass examination the student shall show:

mastery of legal tools and techniques allowing for the identification of lex lata

capability to criticize lex lata and current theories in order to be able to propose alternative

solutions to complex legal problems de lege ferenda

be able to present an intricate legal issue orally and in writing and to convincingly present a

case before a critical audience

Judgement and approach

To pass examination the student shall:

demonstrate an understanding of basic procedural principles, norms and the implementation

of a fair trial

show an understanding of the theories underpinning the concept of a fair trial and their

ramifications for the implementation of human rights in general

display a scientific ethos in working with procedural law

be able to make an assessment regarding societal aspects of different theories and their

relevancy to international law

Teaching and assessment Students obtain knowledge and skills as indicated above by individual studies of course literature and

other course material, and by taking an active part in lectures and moot courts.

Instruction is in the form of lectures, seminars and moot courts as well as thru individual feedback on

moot court performances and mentoring when choosing an exam topic.

In order to pass, students have to participate in the moot court by giving an oral presentation and

submit a written argument to opposing council before the moot court.

Examination is in the form of a two papers and an assessment of individual performances during the

moot court. One is a paper on topics dealing with judicial responsibility which accounts for 0-20

points of the final grade or 25%. The final paper constitutes 50% of the final grade or 0–40 points.

The performance during the moot court is graded with 0-20 points and comprises 25% of the final

grade. In order to pass students must have achieved at least 50% on all separate exams. Topics for

the paper are chosen primarily by the students after individual mentoring and approval by the course

director. Active participation in lectures has an impact on grading in borderline cases.


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Format of examination papers The exam paper on judicial responsibility should be 3-5 pages text, the final exam paper 10-15 pages

text. Front page, bibliography, appendix etc. do not count towards the page limit.

The paper shall be written with 1.5 spacing, font size 11 with margins of 2.5 centimetres all around.

Instructions for papers on judicial responsibility Please use the general topics assigned to your group during the Seminars on judicial responsibility as

a starting point to identify and describe a case of your own choosing, that is separate from that

chosen by your group, and which highlights the problems described during the seminar. E.g. if your

group was assigned the topic “Individual responsibility and criminal liability” you will be limited to

analyse those topics in the context of a real life situation that has occurred or is occurring.

The paper has to contain a discussion of the various human rights involved and of the factors that

have impact on the situation in a positive and/or negative way as well as a discussion on how the

issues can be resolved.

The point of the exam is to see how well students can identify problems, relevant laws and propose

solutions or, if that is not possible, highlight them.

Instructions for seminars on judicial responsibility The group has 45 minutes to present a case on the assigned topic. Students are asked to jointly in the

group find and analyse a case with the help of, but not limited to, the course literature. The

presentation of the issues and the case shall be between 20-30 minutes and the group shall be

prepared to discuss their conclusions with the audience for the remaining 15-25 minutes.

A presentation can, but does not have to, look like the following:

1. A short presentation of the assigned problem

2. A description of the case in which the issue has been highlighted

3. A discussion on the problem and its possible solutions

4. Questions from the audience


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Instruction for seminar on topics of choice for final individual assignments This seminar will verify that you have a topical and doable research question for your exam paper.

You should, ideally, choose your research question yourself. The requirements are as regards to the

contents that the question revolves around human rights and procedure. The research questions

have to be affirmed by the seminar leader before any work can be started on the paper.

If you have difficulties coming up with a question on your own you will have to provide the group

with an idea of where your interests lie and whether you prefer a theoretical or descriptive approach

or both. You will then receive help from the group and the seminar leader to formulate a research

question.

In preparation for the seminar you will have to prepare a core document of no longer than 1 page

containing:

1. The research question

2. An outline with tentative chapter headings and

3. A short description of the empirical material you intend to work with

You will be assigned a core document written by another student. You should read it and prepare

questions which assist the thesis author to improve her or his work. Such questions might relate to

• The adequacy of the chosen empirical material for the question,

• The adequacy of the structure as reflected in the outline for answering the research question,

• The formulation of the research question (will it render overbroad or trivial results?)

The seminar will contain the following parts:

1. Presentation of the proposal by the student him/herself, 2-3 minutes.

2. Comments by fellow student assigned to the proposal

3. Comments by the seminar leader, finalizing the structure of the exam paper.


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Course Literature

Books

Graver, Hans Petter : Judges against justice : on judges when the rule of law is under attack

Heidelberg : Springer, 2015

ISBN 978-3-662-44292-0

Available as E-book thru LUB search or directly thru the EBL platform.

Electronic reader

http://awelu.srv.lu.se/

The link can be accessed using your STIL-id.

Articles

Keenan D. Kmiec : THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM"

California Law Review, October, 2004

https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1324&context=californialawreview

http://awelu.srv.lu.se/

https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1324&context=californialawreview


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Suggested readings

The below readings are suggestions for those that might benefit from alternative sources depending

on knowledge of substantive law and language skills that deal with information about the ECtHR and

legal writing. It is stressed that the suggestions are just that and in order to pass the course they are

not necessary but they might be helpful. Please note that the course by its very nature requires

students to do independent research using many sources and that the obligatory book is just a

starting point.

Suggested readings (On the ECHR and on Courts and Politics)

David Harris (Author), Michael O'Boyle (Author), Edward Bates (Author), Carla Buckley (Author) :

Law of the European Convention on Human Rights

Oxford University Press,

Jacobs & White : The European convention on human rights

Ovey, Clare (Author), White, Robin (Author), Jacobs, Francis Geoffrey (Author)

Latest edition

Oxford : Oxford Univ. Press

Available as E-book thru LUB search or directly thru the EBL platform.

Koopmans, Tim : Courts and political institutions : a comparative view

Cambridge University Press,

William A. Schabas : The European Convention on Human Rights: A Commentary

Oxford University Press

Pieter Van Dijk (Editor), Fried van Hoof (Editor), Arjen Van Rijn (Editor), Leo Zwaak (Editor), Cees

Flinterman (Editor), Aalt Willem Heringa (Editor) : Theory and Practice of the European Convention

on Human Rights

Intersentia Publishers


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Suggested readings (On Legal Writing)

Legal Writing

Lisa Webley

Routledge

Legal Writing guides students comprehensively through this vital legal skill and addresses a range of

assessment methods, from exam questions to final essays and problem answers. It considers how to

deconstruct essay and problem questions and how to conduct and apply legal research to answer set

questions. Webley explains how to reference others' work clearly and correctly, making this book a

useful tool for students concerned about issues of plagiarism. It also focuses on how to develop and

communicate legal arguments, with both good and bad examples of written work considered and

discussed in the text.

Strategic Legal Writing

Donald N Zillman, Evan J Roth

Cambridge University Press

Many legal writing texts emphasize how one writes; this book is unique because it also focuses on

why one writes. Every chapter challenges the reader to write to achieve a strategic objective. Each

assignment has been carefully considered by the authors, and fully vetted to simulate the decision-

making involved in the preparation of important legal writing, whether in a general counsel's office, a

law office, a government attorney's office, or a judge's chambers. Simply put, the authors' approach

is that effective legal writing does not exist in a vacuum. This book provides practical assignments

that teach the student that the best legal writing is not an end in itself, but a means to a larger

strategic objective.


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Suggested Sources: http://echr.coe.int/echr/en/hudoc

The HUDOC database contains all of the European Court of Human Rights judgments. The database

includes decisions, Committee, Chamber and Grand-Chamber judgments, advisory opinions of the

European Court of Human Rights, Commission reports and resolutions of the Committee of

Ministers.

HUDOC database Contains the case-law of the European Convention on Human Rights including the following texts:

Decisions, Judgments and Advisory Opinions of the Court

Reports of the European Commission of Human Rights (now defunct but sometimes nonetheless relevant)

Resolutions of the Committee of Ministers

Case-law Information Notes

Monthly Information Notes contain summaries of cases of particular interest. In the provisional version (which appears within a few weeks from the end of the month covered) summaries are normally drafted in the language of the case concerned, whereas the final single-language version appears in English and French respectively.

This collection also contains annual indexes which provide an overview of all reported cases.

Communicated cases

This collection contains:

Weekly lists of cases recently communicated to a respondent State and deemed to be of more significant jurisprudential interest. Each case is listed with a link to a statement of facts and complaints (as presented by the applicant) and the questions put by the Court.

Statements of facts and complaints (as presented by the applicant) and the questions put by the Court for each recently communicated case deemed to be of more significant jurisprudential interest.

Statements normally appear in one of the official languages only.

Press releases This collection contains all the press releases issued by the Registry since 1 January 1999. Available in English and French, they include summaries of judgments and decisions delivered by the Court and information about cases pending and about the Court’s activities in general.

http://echr.coe.int/echr/en/hudoc

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-in-en



http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-cc-en

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-cc-en

http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-pr-en


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Moot Court instructions

The Moot Court cases are based on cases from the European court of human rights and consequently

the moot court will be based on the European convention on human rights although supporting

arguments can be based other legislations. The cases are somewhat technical in nature and require a

thorough examination on several levels in order to be properly analyzed and presented.

In each Moot Court two groups are active, one representing the State, the other representing the

claimant. Every group has to prepare meticulously. It is important that the groups read the case

thoroughly in order to get a sense of the problems involved. When presenting the cases all relevant

sources of law have to be used and comprehensive research is therefore a prerequisite. Each group

has to submit an overview of their arguments to the opposing group before each moot court

containing the articles and main points of the arguments that they are going to base their claims on.

The Moot Court will begin with an oral presentation by the group representing the applicant, making

an argument supporting the applicants view and justifying it. The applicants have a maximum of 30

minutes to present their case. When the applicant’s presentation is finished the group representing

the State will put forward their case after approximately a 15 minute break. The group for State also

has a maximum of 30 minutes to present their case, again presenting relevant case-law and

justification supporting their argument. Time limits are absolute and it is therefore important that

the groups rehearse their presentations in order to make sure that they’ll fit the allotted time-slots.

After the presentations questions and comments will be made by the professor in charge. The

exercise is concluded by feedback given by the professor to the participating groups separately.

The presentation shall include a thorough and exhaustive description of the law, the sources of law

and possible solutions to the problems stated. The aims of the parties shall be discussed as well as

the balance struck between different rights in order to get an understanding of the role of the

judiciary when it comes to extend and restrict the scope of the rights. Alternative solutions have to

be discussed in order to get a perspective on the ones chosen. It is important that students question

established sources and propose their own solutions in order to demonstrate a thorough sense of

the problems discussed.

The oral presentation shall be done in a convincing manner, conducted without reading from notes,

by speaking freely on the topic. Notes can only be used as support. Every member of the group shall

present an equally large part of the case. The group is responsible for the presentation as a whole as

well as being responsible for making sure that every member of the group has an equal amount of

time presenting the case. The latter is vital since the second of the two moot courts is graded.

The objective of the Moot Court is to discuss thorny Human Rights topics from various perspectives

and to establish an understanding of the relationship between political and judicial decisions. It is

always possible to find important issues to discuss and it’s imperative that the group highlight these

issues in each and every case.


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Structure and presentation of a case

Structure The following points are a guideline and a starting point for organizing the moot court presentations.

1. Start by briefly mentioning your claims are and what articles they are based on. Articles can be

invoked separately or together. Do not forget the additional protocols to the European convention

on human rights.

2. Structure your arguments by presenting your claims one by one, including providing information

on what article you ask the court to consider and what case-law supports your argument.

3. Ask the court to apply the circumstances in the case in a way that is beneficial to your claim. You

are asking the court to interpret the case your way. Depending of the nature of the case different

approaches can be taken to persuade the court that your way of looking at things is the correct one.

Sometimes it is useful to take a rather legalistic view simply stating that the ECtHR has to follow the

exact wording of the ECHR and that extensive interpretation should not be used. In other cases there

might be a need for an extensive interpretation and in such cases it might be useful to use phrases

such as “In the spirit of the ECHR” or “The aim of the ECHR” necessitates the interpretation that

would benefit your case.

You might also want to use arguments that highlight the consequences of a certain finding, or the

absence of one, by the ECtHR. What will be the impact of a certain verdict and who benefits/pays the

price? Here you can e.g. use different legal and societal theories to make a strong case using legal

and moral arguments based on different values.

4. Summing up. A short summing up of what has been said can be useful to remind the judges what

you are asking of them and why, especially if your argument has been a relatively complicated one.

Presentation One of the main purposes with the moot court exercise is to teach students how to be as persuasive

as possible when making a human rights argument in court and other places.

The technique of presenting a case varies depending on what country and in what setting the

presentation is done. Nevertheless there are a few things that are useful to consider no matter

where you are. It is important to give an impression that you yourself believe in what you are

claiming and that your claim is solidly based. Not only does such an appearance look convincing, it

also makes the opposing counsel less likely to question and/or interrupt you.

In order to be convincing it is important to have an uninterrupted flow in the presentation. The

following points should be kept in mind when striving for being as convincing as possible:

1. Avoiding reading from a script,

2. Avoid having too many “ehh” or “ahhs”, use short breaks instead.


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3. Speak slowly and

4. Maintain eye contact with the audience,

5. Use your voice efficiently by speaking up and important parts by emphasizing them.

6. Use a simple and coherent language, and

7. Use your hands in a natural way; e.g. avoid keeping your hands in your pocket and beware of

“ticks”.

Should you, e.g., find similar cases to those in the compendium in HUDOC, DO NOT ASSUME, that

you can use those arguments and be done with it.

It is by no means certain that the arguments presented before the ECtHR are still valid and in any

case they must be critically analyzed and put in today’s context. You need to explain not only what

you are thinking but also why.


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Moot Court Groups

Groups that represent the Applicant:

1, 3, 5, 7 and 9

Groups that represent the State:

2, 4, 6, 8 and 10

How to balance rights in court (Case I): Right to a fair trial

Groups 1 and 2

How to balance rights in court (Case II): Freedom of

expression

Groups 3 and 4

How to balance rights in court (Case III): Freedom of

thought, conscience and religion

Groups 5 and 6

How to balance rights in court (Case IV): Right to family life

and asylum

Groups 7 and 8

How to balance rights in court (Case V): Right to assembly

Groups 9 and 10


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Moot Court cases


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How to balance rights in court (Case I): Right

to a fair trial

Groups 1 and 2


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CASE I OF APPLICANT v. STATE

JUDGMENT


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THE FACTS

A. The applicant's arrest and detention

1. The applicant was arrested in the early morning of 21 October under section 11 of the Prevention

of Terrorism Act by police officers investigating the murder of a former member of the Police. The

applicant was transported to the special holding centre for terrorist investigations.

2. The applicant was interviewed for thirty-five hours on consecutive days by police officers,

beginning at 11.01 a.m. on 21 October until 25 October.

3. At the time when the applicant was arrested (1.50 a.m. on 21 October), there was an initial

decision made to defer the applicant's access to a solicitor by the police officer in charge of the

investigation. The applicant had by this time requested a solicitor. At a review at 9.15 p.m. on 21

October 2010, the applicant was informed that his right to see a solicitor had been delayed for

twenty-four hours. The deferral was therefore effective until the morning of 22 October. His solicitor

was informed of the deferral but did not attend until 12.10 p.m. on 23 October. There was a period

of time from early morning on 22 October when the applicant was not being denied access to his

solicitor. He made relevant admissions that afternoon.

4. The applicant did not see his solicitor until the next day, namely 23 October. The applicant's first

interview with his solicitor lasted forty minutes until 12.50 p.m. and the applicant made no complaint

of ill-treatment during that visit. The applicant saw his solicitor again at 3.15 p.m. on 25 October and

again no complaint of ill-treatment was made in that interview, which lasted until 4.00 p.m. During

the first interview with his solicitor, a policeman was present. The consultation took place within

sight and hearing of the police officer who was in close proximity to the applicant and his solicitor. At

the beginning of the interview, the police inspector told the solicitor in the presence of the applicant

that no names were to be discussed or information conveyed which could assist other suspects and

that the interview should be purely on legal advice.

5. The applicant was seen by doctors on a total of eight occasions during his stay in custody,

beginning with an examination following his arrival in the early morning of 21 October 2010. He

made no complaint of ill-treatment to any of the doctors who examined him. The doctors found no

evidence to indicate any ill-treatment or mental handicap.

6. The police alleged that the applicant admitted his involvement in the murder during an interview

in the afternoon of 22 October. They further stated that in a later interview the applicant signed a

statement to this effect and that thereafter he freely and voluntarily admitted additional terrorist

activity and signed further statements.

7. The applicant alleged that he had not volunteered the statements freely but, instead, that all the

verbal and written statements had been extracted by ill-treatment, threats of ill-treatment, threats

to his family and other oppressive conduct. The allegations of ill-treatment were denied by the

police.


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8. All of the verbal and written statements made by the applicant had been obtained by the police

officers after the administration by them of cautions pursuant to Article 3 of the Criminal Evidence

Order, in the following terms:

“You do not have to say anything unless you wish to do so but I must warn you that if you fail to

mention any fact which you rely on in your defence in court, your failure to take this opportunity to

mention it may be treated in court as supporting any relevant evidence against you. If you do wish to

say anything, what you say may be given in evidence.”

9. The applicant's solicitor was never permitted to be present at any of the applicant's interviews, nor

was any independent person; nor were the interviews recorded on video or audiotape.

10. On 25 October, at 7.30 p.m., the applicant was transferred to another police station, where he

was charged.

B. The trial proceedings

11. On 14 November the applicant was tried by a single judge, sitting without a jury, for a total of

eighteen serious offences including, inter alia, murder, attempted murder, possession of firearms

and ammunition with intent, possession of explosives with intent, false imprisonment, hijacking a

motor vehicle, and membership of a proscribed organisation. He was found guilty on all counts.

12. The disputed verbal and written statements by the applicant constituted the only evidence

connecting the applicant to the charges brought. The admissibility of the statements was challenged

by the applicant on the basis that they had been obtained by torture and inhuman or degrading

treatment or, alternatively, should be excluded in exercise of the judge's discretion. A voir dire

(submission on a point of law in the absence of the jury) commenced and the applicant gave

evidence over ten days which consisted of a highly detailed account of ill-treatment which he alleged

he had experienced from the police. The officers denied ill-treating the applicant.

13. The events in the interviews had been filmed by television camera and the pictures relayed to a

monitor screen in a special room at the police station. At all times, an officer of the rank of inspector

was on duty for the purpose of viewing the monitor screens. A number of officers gave evidence and

all of them told the court that they had seen no evidence of impropriety of any kind occurring during

the interviews with the applicant. Indeed, none of them had ever witnessed an example of bad

behaviour by an interviewing officer.

14. The doctors, who examined the applicant a number of times in the police station, gave evidence

that the applicant had been cooperative and composed, that there were no signs of recent injuries

and that the applicant did not complain of ill-treatment. Treatment had been given to the applicant

in respect of his history of duodenal ulceration.

15. The applicant's account of the interrogation was rejected by the trial judge, who said:


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"Having heard the officers concerned who impressed me as being honest and conscientious officers, I

am absolutely convinced that all of [the applicant's] allegations of ill-treatment at this stage are

completely unfounded ...

In my view if there had been any truth in the account of ill-treatment given by [the applicant] his

distress would have been obvious to the doctors ... None of the medical evidence therefore gave any

credence to the account given by [the applicant] in the witness box and all of that evidence is

consistent with his being treated with absolute propriety ...

... I am satisfied ... that in no respect was [the applicant] subjected to any treatment which could be

described as torture or inhuman or degrading treatment, violence or oppression in order to induce a

confession from him. I am satisfied that he was not threatened in any way."

16. At the trial, there was unchallenged independent medical evidence to the effect that:

1. The applicant had a full-scale intelligence quotient of 72.

2. The applicant was on the borderline of mental retardation.

3. The applicant had a reading ability equivalent to that of an average 10-year-old child.

4. His suggestibility was average but he had a high level of compliance.

17. Evidence was given later in the trial by a psychologist that

"[the applicant] is a psychologically vulnerable man and in my view would have required appropriate

support in the context of police interviews. [The applicant's] psychological vulnerabilities taken

together with the lack of support from either the Solicitor or an appropriate adult during the police

interviews and the prolonged and intensive nature of the interviews would in my opinion be of

relevance to the reliability of his admissions".

18. In convicting the applicant, the judge rejected this evidence, finding that the applicant had not

needed any form of independent support during the interviews and the police had been entitled to

treat him as an ordinary member of society. He noted that the applicant's earliest admissions did not

follow particularly prolonged or intensive questioning and that during those interviews he persisted

with a consistent story told with an air of conviction. He also noted that no one thought to have the

applicant's mental capacity investigated prior to the commencement of the trial. The trial judge

stated:

"... I am satisfied that [the applicant] was not suffering from such a degree of mental handicap that

would have required the police to exercise any special consideration for him and that his memory,

understanding and intellect were quite adequate to enable him to resist making any false confession

under questioning in the police station and that the questioning was, therefore, not in any respect

unfair to him".


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19. The police questioning which led to his confessions was therefore not unfair and the judge had

no doubt about the reliability of the admissions made by the applicant.

20. In relation to the question of access to a solicitor, the judge observed that the deferral of twenty-

four hours was effective until the morning of 22 October. However, the applicant's solicitor did not

arrive until 12.10 p.m. on 23 October. The trial judge noted that there had been a suggestion that the

solicitor may have been unintentionally misled as to the length of time of the deferral but found,

having heard the solicitor and police officers concerned, that he was satisfied that the solicitor was

accurately informed that the deferral was for twenty-four hours. In any event, it was not the deferral

which prevented the applicant from seeing his solicitor after sometime early in the morning of 22

October but the fact that his solicitor did not arrive until 23 October. Incriminating admissions were

made by the applicant at a time when he was no longer being denied access to a solicitor. The judge

concluded that there was nothing improper in the decision to deny access for twenty-four hours,

having regard to the police fears that messages might be passed through the solicitor with a view to

alerting others implicated in offences.

21. The trial judge stated, inter alia:

"Having considered the extent of the strength of character of the accused, his intellectual

shortcomings and his nature I am quite satisfied that he was not a person for whom the regime of

questioning in the police station would of itself be oppressive ...

I am further satisfied that nothing was said or done during his questioning the effect of which upon

him would justify the exercise of a discretion to exclude the statement ...

I am satisfied that ... his admissions were made freely, and accept the police evidence that what

triggered the making of admissions by this accused was the fact that the police were able to

demonstrate to him that they had information available to them which discredited the alibi that he

had given them ...

In my view the particular circumstances of this case provided ample grounds for the belief that other

persons could be alerted if a solicitor had seen this accused within 24 hours. In any case [the

applicant] made no admission during the 24 hours for which the solicitor had been deferred.

I am satisfied that the deferral was right and proper in this case and that in any case it was not the

deferral that resulted in the accused not seeing his solicitor during the early part of 22 October."

22. The judge further considered the applicant's complaints that a police officer had been present

during the first legal consultation with his solicitor and whether this had prevented him getting the

full benefit of his solicitor's advice. Evidence had been heard from the police inspector concerned

who had stated that the purpose of sitting in to observe the interview was primarily to prevent

information from being passed from the prisoner to the solicitor which might assist others suspected

of involvement in the offence who had not yet been arrested. Under cross-examination, he stated

that he had not been told of any codes that might be used and that it would be hard to identify such

a code if it was used. The judge found, on the evidence of the applicant, his solicitor and the police


26

officer, that the solicitor had not been in the least inhibited by the presence of the police officers

and, according to the applicant, had been quite prepared to raise the crucial evidential issues with

him. He was satisfied that an objective state of affairs existed justifying both the initial deferral of

access and the supervision of the interview, namely, two other suspects were still at large whom the

police wished to interview.

23. The judge concluded that he was satisfied beyond reasonable doubt that the confessions were

made freely and voluntarily. There was no ground for exercising his discretion to exclude any of the

oral or written statements made by the applicant. The judge was accordingly satisfied that the

applicant knew that he was playing a part in a murder plot and was therefore, inter alia, guilty of

murder.


27

How to balance rights in court (Case II):

Freedom of expression

Groups 3 and 4


28


29

CASE II OF APPLICANT v. STATE

JUDGMENT


30

THE FACTS

1. After studying physics for several years the applicant sat his degree examinations at the

University, where he took a doctorate in physics three years later. For six years he worked in the

Institute of Physics at the same University, first as an employee and then as a research assistant with

the status of temporary civil servant.

His appointment, initially limited to four years and subsequently extended, was terminated with his

agreement after he had been told by his Director that he could not expect a further extension.

According to the Government, these assistantships are used to train scientists and give them an

opportunity to prepare themselves for an academic career. For this reason they are deliberately

awarded on temporary contracts which should have a maximum total duration of six years.

2. Shortly after taking up his duties, the applicant signed a statement certifying that he had been

given notice of the Government’s decision on anti-democratic activities by civil servants. Such a

statement was required whose first paragraph read:

“It is taken for granted that candidates for civil-service posts shall not belong to any organisation

which sets out to abolish the free democratic constitutional system or support such tendencies in any

other way, directly or indirectly. If necessary, appointment or employment should be regarded as

having been brought about by wilful deceit.”

The third paragraph stated that it was for the authorities concerned to take "the necessary action

(disciplinary proceedings, dismissal)" "against staff who fail in their duty of loyalty".

3. The applicant was a member of the Party; he was chairman of a party branch for three years.

Later, he was appointed to the Executive Committee, of which he remained a member for several

years. He also had served on the Party Executive Committee, where his responsibilities included

university matters. He then left the Party.

The applicant set out his political views in two books. The first of these, reprinted several times, is

entitled “Marxism? A superstition! Science disproves the intellectual foundations of Marx and Lenin”;

the second, is entitled "The People as it really is - Science and Life confirm the Concept of the

Nation".

4. He applied for a position as lecturer at the State Engineering College. He passed a test there, and

the college asked the Ministry of Education and Culture to appoint him.

The Ministry informed him that another applicant had been given the post. A year later, having

learned through the press that his political activities in the Party had been the main reason for his

failure to secure the appointment, the applicant went to court to compel the University to employ

him. His case was dismissed by the Administrative Court.

The Court of Appeal held that he did not afford the guarantee required of the Civil Servants Act that

he would at all times uphold the free democratic constitutional system within the meaning of the


31

Basic Law. It based its conclusions mainly on his book "The People as it really is - Science and Life

confirm the Concept of the Nation".

5. The applicant applied for a vacant post as lecturer at a Technical College. With two of the other

seven candidates he took a test and was interviewed. The Lecturers’ Council recommended the

Ministry of Education and Culture to appoint him. On the same day, he was interviewed at the

Ministry on the subject of his past activities as a member of the Party and his future political

intentions. Immediately afterwards, he wrote to the principal of Technical College assuring him that

he would, if appointed, keep his professional duties and private political commitment entirely

separate and would not misuse his position as a teacher for political ends; he added that he had no

intention of appearing in public in the University or the surrounding area as a party militant - during

the election campaign for parliament, for example.

The Ministry appointed him as a lecturer with the status of probationary civil servant at the Technical

College. The decision was taken by the Minister himself who, according to the Government, had

known the applicant as a parliamentarian and had no doubts whatever about his loyalty to the

Constitution. The Civil Servants Act requires all candidates for civil-service posts - whether temporary

or permanent - to give "a guarantee that they will consistently uphold the free democratic

constitutional system within the meaning of the Basic Law". Civil servants shall undertake to bear

witness to the said system by their every word and deed and to uphold it.

The applicant did, however, not have to sign a declaration of loyalty. The applicant was sworn in

before the principal of the Technical College; he promised, inter alia, to abide by and uphold the

Basic Law and the Constitution.

6. The Civil Servants Act makes it possible for the normal three-year probationary period to be

shortened, thus the principal of the College requested that the applicant be given tenure for life.

After examining whether the legal conditions for tenure were fulfilled, the Ministry replied that The

applicant’s attitude and political activities had given rise to doubts concerning his loyalty to the

Constitution and that he might even have to be dismissed.

7. The applicant was interviewed on the subject of his attitude to the Constitution. Later, the

Ministry gave him notice of dismissal. Citing, inter alia the Civil Servants Act, which provides for

dismissal of a probationary civil servant where he has not proved himself during the probationary

period, it declared him unsuitable for the post: as a prominent Party official, he had approved of

Party aims which were inimical to the Constitution and had thus shown that he did not support the

free democratic constitutional system by his every word and deed and was not prepared to uphold it.

According to the Ministry, the Party behaved in a manner hostile to the Constitution since, among

other things, it rejected the idea of international understanding, human rights and the existing

democratic order; specifically, it preached extreme nationalism and a racist ideology, and wished to

abolish parliamentary government and the multi-party system.


32

The prohibition of employment of extremists is designed to ensure uniformity of administrative

practice in the matter; it reiterates civil servants’ legal duty of loyalty to the free democratic

constitutional system and proscribes that:

“Every case must be examined and decided according to its particular circumstances. Regard must be

had in the process to the following principles:

Candidates

A candidate who engages in activities inimical to the Constitution shall not be appointed to the civil

service.

If a candidate belongs to an organisation engaging in activities inimical to the Constitution, this fact

shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional

system. As a rule such doubt shall be sufficient reason for not appointing him.

Civil servants

If a civil servant <fails to comply with his duty of loyalty to the Constitution> the appointing authority

shall draw the necessary conclusions on the basis of the particular facts established in his case and

shall consider whether grounds exist for dismissing him from the service.”

Civil servants’ special duty of loyalty to the State and its Constitution has been confirmed and

clarified by the Constitutional Court.

8. The applicant lodged an objection against his dismissal. This was rejected by the Ministry and he

instituted proceedings before the Administrative Court.

The Ministry revoked its decision on the ground that it had failed to consult the Staff Committee of

the Technical College beforehand. At the same time, it again dismissed the applicant on the same

grounds as earlier - having interviewed him again and consulted the Staff Committee in the

meantime. The Administrative Court accordingly stayed the proceedings before it, holding that the

issues raised had been settled.

9. The applicant lodged an objection against his second dismissal, arguing, inter alia, that the

criticisms levelled at him had been unjustified. He asserted that it was common knowledge that he

had personally and actively upheld the free democratic system. Since becoming a teacher he had

resigned from several of his Party posts, including those of chairman of the one Party-branch, district

agent and member of the Executive Committee responsible for university matters. In addition, he

had deliberately restricted his political activities in the area and had not appeared there in public. His

membership of a party with aims allegedly inimical to the Constitution was no reason for dismissing

him. The Technical College and the Staff Committee had supported him and had testified to his

personal and professional abilities. Finally, the probationary period was now over: the period which

he had previously spent as a temporary civil servant should be added to the two years and seven

months which he had spent as a probationary civil servant.


33

The Ministry of Education and Culture rejected his objection, mainly on account of the major role he

had played in Party activities. It also referred to the Administrative Court’s ruling that mere

membership of an unconstitutional party might justify a civil servant’s dismissal; that being so, it was

unnecessary to establish whether the applicant had restricted his political utterances, and his

professional qualifications were immaterial. Finally, probation did not end automatically under civil-

service law; as he had not been established; the applicant was still a probationer and could therefore

be dismissed.

10. The applicant challenged the Ministry’s decision before the Administrative Court, claiming that

no definite proof had been adduced therein that his attitudes had been inimical to the Constitution.

In The State’s case-law, membership of an organisation regarded as being inimical to the Constitution

was merely a possible reason for doubting a civil servant’s constitutional loyalty, and every case had

to be examined in detail. The Ministry’s overall judgment did not satisfy this requirement. He could

not be held responsible for Party statements or actions which might be regarded as inimical to the

Constitution. In any case, the party approved of the free democratic system within the meaning of

the Law. When the Minister appointed him as a probationary civil servant, he knew that he had been

a member of the Party. It was thus illogical that his commitment to the Party should be seen as

making him personally unsuitable and justifying his dismissal. The same inconsistency was apparent

in earlier statements by the Minister.

11. The Administrative Court set aside the decisions. The court held that the law and general

principles precluded dismissing a probationary civil servant on grounds which had been known - and

should have been taken into account - when he was appointed.

The Ministry had based its decision on facts already known which it had not regarded at the time as

indicating personal unsuitability. It had been aware that the Party was regarded as having aims

inimical to the Constitution.

The fact that the Ministry had nonetheless appointed the applicant showed that it regarded his

personal conduct, notwithstanding his commitment to the Party, as affording the necessary

guarantee of allegiance to the Constitution. The court had beforehand called the applicant to give

evidence explaining a number of passages in his book. It had sought such evidence notably in order

to establish whether his theory of genetic and biological inequality in humans was based on racist

views and whether The applicant drew conclusions which were incompatible with the principles of

equality and respect for human rights enshrined in the Basic Law.

12. The Ministry appealed against this judgment. It contended that it must be free to rectify any

error made during the appointment procedure; it could not be compelled to establish a probationary

civil servant who lacked one of the requisite qualifications. Moreover, it had since been found that

the Party did not accept the Basic Law but was actively opposed to it and the lawful institutions. The

applicant’s new book confirmed his personal views of the Basic Law; to conclude from it that he did

not recognise the Republic and its Constitution as positive values, but extolled National Socialism.


34

13. The Administrative Court of Appeal allowed the appeal and dismissed the applicant’s action. In

the light especially of the case-law of the Constitutional Court it ruled that the impugned decisions

were lawful.

After reviewing in detail the arguments and evidence, the Court held that it had not been proved

that the Party was pursuing aims inimical to the Constitution, that is to say, was systematically and

actively seeking to undermine the free democratic constitutional system, bring about its abolition or

jeopardise the continued existence of the State. Mere membership of the Party could not therefore

be construed as a sign of doubtful allegiance. Many Party statements nonetheless did indicate a

worrying tendency, and, that being so, a political party’s constitutionally suspect views might give

grounds for ascertaining the personal views of a civil servant who was a party member. A civil

servant, who was bound actively to uphold the free democratic system, might accordingly be

required to dissociate himself explicitly from the objectionable views of his party.

The applicant had failed to dispel the suspicion that he approved the Party line. On the contrary, he

had identified himself with it by his many militant activities. These, and the personal views he had

expressed in his book cast serious doubts on his loyalty to the Constitution. In his book, which could

legitimately be taken into consideration, he had played down or indeed praised, without the least

reservation or criticism, circumstances and events that had marked the Third Reich. Admittedly, the

applicant maintained that he had written in appreciative terms only of the first phase of the Third

Reich, but this showed merely that there were at least some aspects of National Socialism of which

he approved, not that he disavowed it. As early as 1933, the most important fundamental rights had

been suspended, separation of powers abolished, political parties disbanded, trade unions broken up

and (what marked the beginning of the persecution of the Jews) “non-Aryan” civil servants

dismissed. Without any reservation or criticism the applicant judged the circumstances, events and

ideas of the Third Reich preferable to the current situation. It was thus impossible to believe that he

also endorsed the fundamental views and principles of the Basic Law as being a priceless asset to be

protected.

The Ministry had rightly concluded that The applicant did not give any guarantee that he would at all

times uphold the free democratic constitutional system within the meaning of the Basic Law, and

that he had accordingly failed to prove himself during his probation. It mattered little whether he

had the necessary professional qualifications and had refrained from expressing any political views at

the Technical College. Before appointing him the Minister had certainly been aware of his

prominence in the Party, but this did not make the disputed revocation of his appointment unlawful.

Performance of duties as a probationary civil servant was of vital importance for determining

whether a probationer could be relied on to be loyal to the Constitution. The applicant should have

expected the Ministry to carry out, at the end of the probationary period, a further thorough and

final assessment of matters already known to it.

14. The applicant applied to the Constitutional Court to have the judgments set aside, on the ground

that they contravened various Articles of the Basic Law.


35

In particular, he challenged the objectivity and relevance of the evidence used against him and

contended that the judgments complained of had been arbitrary. The courts which had given those

judgments had made no attempt to establish whether the Party and he had, by their statements,

attacked the principles of the Basic Law. The Party and he were not in fact pursuing aims that were

incompatible with the Basic Law. The views expressed in his book were covered by freedom of

expression and none of them bore on any principles of the free democratic system. Moreover, they

were in line with the views of most present-day historians. The judgments in issue had accordingly

infringed his right not to be discriminated against on account of his opinions. In penalising a political

opponent for holding views that were not directed against the democratic system, the authorities

had disregarded his right to freedom of conscience and opinion. His dismissal and the criticisms of his

book amounted to unlawful interference with his freedom of expression. He had also been banned

from his profession, since he could no longer find a university lectureship at his age. Despite his

suitability, professional qualifications and efficiency, he was being arbitrarily refused access to a civil-

service post, or prevented from remaining in one, his dismissal - based on circumstances which were

both lawful and known at the time of his appointment.

15. Sitting as a panel of three judges, the Constitutional Court decided not to entertain the

constitutional complaint, on the ground that it had insufficient prospects of success.

Citing its own case-law, it recalled firstly that the duty of loyalty to the State and the Constitution was

one of the traditional principles of the civil service. Anyone who was not clearly prepared at all times

to uphold the free democratic constitutional system was thus unfit to hold a civil-service post. Any

probationary civil servant who could not be relied upon to do so must therefore be dismissed on

grounds of personal unsuitability. In this connection, membership of a party whose aims were

incompatible with the free democratic system was a relevant consideration.

In the particular case, examination of the judgments challenged did not disclose any breach of

constitutional law. Neither the findings of fact nor the conclusions of the Courts breach any of the

rights he relied on.


36


37

How to balance rights in court (Case III):

Freedom of thought, conscience and religion

Groups 5 and 6


38


39

CASE III OF THE APPLICANT v. STATE

JUDGMENT


40

THE FACTS

1. The applicant, “The Party”, was a political Party.

2. The Party took part in a number of general and local elections. In the local elections in 2002 The

Party obtained about 10% of the votes and its candidates were elected mayor in a number of towns,

including five large cities. In the general election of 2004 it obtained 16% of the votes. The sixty-two

MPs elected as a result took part between 2005 and 2009 in the work of Parliament and its various

committees, including the Committee on Constitutional Questions, which proposed amendments to

the Constitution. During the debate in Parliament on the new paragraph of the Constitution the

chairman of the Committee on Constitutional Questions explained when he presented the draft it

had prepared that the Constitutional Court would not restrict itself to noting the unconstitutional

nature of the individual acts of the members of The Party but would then be obliged to declare that

The Party concerned had become a centre of anti-constitutional activities on account of those acts.

Ultimately, The Party obtained approximately 24% of the votes in the general election and about 35%

of the votes in the local elections.

The results of the general election made The Party the largest political party in the State with a total

of 158 seats in the Grand National Assembly (which had 450 members at the material time). The

Party came to power by forming a coalition government with the centre-right party.

Proceedings in the Constitutional Court

3. Principal State Counsel’s submissions

4. The Principal State Counsel at the Court of Cassation applied to the Constitutional Court to have

The Party dissolved on the grounds that it was a “centre” of activities contrary to the principles of

secularism. In support of his application, he referred to the following acts and remarks by certain

leaders and members of The Party.

– Whenever they spoke in public, The Party’s chairman and other leaders advocated the wearing of

Islamic headscarves in State schools and buildings occupied by public administrative authorities,

whereas the Constitutional Court had already ruled that this infringed the principle of secularism

enshrined in the Constitution.

– At a meeting on constitutional reform The Party’s chairman, had made proposals tending towards

the abolition of secularism. He had suggested that the adherents of each religious movement should

obey their own rules rather than the rules of law.

– At a seminar The Party chairman had called on Muslims to join The Party, saying that only his The

Party could establish the supremacy of the Koran through a holy war (jihad) and that Muslims should

therefore make donations to The Party rather than distributing alms to third parties.

– Several members of The Party, including some in high office, had made speeches calling for the

secular political system to be replaced by a theocratic system. These persons had also advocated the

elimination of the opponents of this policy, if necessary by force. The Party, by refusing to open


41

disciplinary proceedings against the members concerned and even, in certain cases, facilitating the

dissemination of their speeches, had tacitly approved the views expressed.

– A Party MP had said in front of journalists in the corridors of the parliament building that blood

would flow if an attempt was made to close the theological colleges, that he personally wanted

blood to flow so that democracy could be installed in the country, that he would strike back against

anyone who attacked him and that he would fight to the end for the introduction of Islamic law

(sharia).

– The Minister of Justice, (a Party MP and vice-chairman of the Party), had expressed his support for

a mayor by visiting him in the prison where he had been detained pending trial after being charged

with publicly vindicating international Islamist terrorist groups.

Principal State Counsel further observed that The Party had not opened any disciplinary proceedings

against those responsible for the above-mentioned acts and remarks.

5. The applicants’ defence

6. The Party’s representatives filed their defence submissions, in which they relied on international

human-rights protection instruments, including the Convention, pointing out that these instruments

formed part of the States written law. They further referred to the case-law of the Commission,

which had expressed the opinion that Article 11 of the Convention had been breached in the cases

concerning the Communist Party and the Socialist Party, and to the case-law of the Court and the

Commission on the restrictions on freedom of expression and freedom of association authorised by

the second paragraphs of Articles 10 and 11 of the Convention. They contended that the dissolution

of The Party was not prompted by a pressing social need and was not necessary in a democratic

society. Nor, according to The Party’s representatives, was The Party’s dissolution justified by

application of the “clear and present danger” test laid down by the Supreme Court of the United

States of America.

7. The Party’s representatives further rejected Principal State Counsel’s argument that The Party was

a “centre” of activities which undermined the secular nature of the Republic. They submitted that

The Party was not caught by the criteria laid down in the Law on the regulation of political parties for

determining whether a political party constituted a “centre of anti-constitutional activities”. They

observed, inter alia, that the prosecuting authorities had not issued any warning to The Party (which

had five million members) that might have enabled it to expel any of its members whose acts had

contravened the provisions of the Criminal Code.

8. The Party’s representatives also set out their point of view on the concept of secularism. They

asserted that the principle of secularism implied respect for all beliefs and that The Party had shown

such respect in its political activity.

9. The applicants’ representatives alleged that in accusing Mr C of supporting the use of force to

achieve political ends and of infringing the principle of secularism the prosecuting authorities had

merely cited extracts from his speeches which they had distorted and taken out of context.


42

Moreover, these remarks were covered by Mr C’s parliamentary immunity. They further noted that

the dinner he had given to senior officials of the Religious Affairs Department and former members

of the theology faculty had been presented by Principal State Counsel as a reception organised for

the leaders of Islamist fundamentalist movements, which had in any event been legally proscribed

since 1925.

10. With regard to the remarks of the other The Party leaders and members criticised by Principal

State Counsel’s Office, The Party’s representatives observed that these did not constitute any

criminal offence.

They asserted that none of the MPs whose speeches had been referred to by Principal State Counsel

was authorised to represent The Party or held office within The Party and claimed that the

prosecuting authorities had not set in motion the procedure laid down in the Law on the regulation

of political parties so as to give The Party the opportunity, if the need arose, to decide whether or

not the persons concerned should continue to be members of The Party; the first time The Party’s

leadership had been informed of the remarks criticised in the case had been when they read

Principal State Counsel’s submissions. The three MPs under attack had been expelled from The Party,

which had thus done what was necessary to avoid becoming a “centre” of illegal activities within the

meaning of the Law on the regulation of political parties.

11. The parties’ final submissions

12. The Principal State Counsel filed his observations on the merits of the case with the

Constitutional Court. He submitted that according to the Convention and the case-law of the State

courts on constitutional-law issues nothing obliged States to tolerate the existence of political parties

that sought the destruction of democracy and the rule of law. He contended that The Party, by

describing itself as an army engaged in a jihad and by openly declaring its intention to replace the

Republic’s statute law by sharia, had demonstrated that its objectives were incompatible with the

requirements of a democratic society. The Party’s aim to establish a plurality of legal systems (in

which each group would be governed by a legal system in conformity with its members’ religious

beliefs) constituted the first stage in the process designed to substitute a theocratic regime for the

Republic.

13. In their observations on the merits of the case, The Party’s representatives again argued that the

dissolution of their The Party could not be grounded on any of the restrictions permitted by the

second paragraph of Article 11 of the Convention. They went on to say that Article 17 was not

applicable in the case, as The Party had nothing in common with political parties which sought to

install a totalitarian regime. Furthermore, the plurality of legal systems which their party proposed

was actually intended to promote the freedom to enter into contracts and the freedom to choose

which court should have jurisdiction.

14. The Constitutional Court’s judgments

15. In a judgment the Constitutional Court ruled that the Law provided that for a political party to be

considered a “centre” of activities contrary to the fundamental principles of the Republic its


43

members had to have been convicted of criminal offences. According to the Constitutional Court,

that legal restriction did not cover all cases where the principles of the Republic had been flouted. It

pointed out, among other observations, that activities contrary to the principle of secularism no

longer attracted criminal penalties.

16. The Constitutional Court dissolved The Party on the ground that it had become a “centre of

activities contrary to the principle of secularism”.

17. In its judgment the Constitutional Court first dismissed the preliminary objections raised by The

Party. In that connection it held that the parliamentary immunity of the MPs whose remarks had

been mentioned in Principal State Counsel’s submissions had nothing to do with consideration of an

application for the dissolution of a political party and forfeiture of political rights by its members, but

was a question of the criminal responsibility of the MPs concerned, which was not a matter of

constitutional law.

18. With regard to the merits, the Constitutional Court held that while political parties were the

main protagonists of democratic politics their activities were not exempt from certain restrictions. In

particular, activities by them incompatible with the rule of law could not be tolerated. The

Constitutional Court referred to the provisions of the Constitution which imposed respect for

secularism on the various organs of political power. It also cited the numerous provisions of domestic

legislation requiring political parties to apply the principle of secularism in a number of fields of

political and social life. The Constitutional Court observed that secularism was one of the

indispensable conditions of democracy. In the State the principle of secularism was safeguarded by

the Constitution, on account of the country’s historical experience and the specific features of Islam.

The rules of sharia were incompatible with the democratic regime. The principle of secularism

prevented the State from manifesting a preference for a particular religion or belief and constituted

the foundation of freedom of conscience and equality between citizens before the law. Intervention

by the State to preserve the secular nature of the political regime had to be considered necessary in

a democratic society.

19. The Constitutional Court held that the following evidence proved that The Party had become a

centre of activities contrary to the principle of secularism:

20. The Party’s chairman, Mr C, had encouraged the wearing of Islamic headscarves in public and

educational establishments. At the Party’s Fifth Ordinary General Meeting, he had said:

“... when we were in government there was never any question of hostility to the wearing of

headscarves ...”

In his speech before the general election he had said:

“... [university] chancellors are going to retreat before the headscarf when The Party comes to

power.”


44

But manifesting one’s religion in such a manner amounted to exerting pressure on persons who did

not follow that practice and created discrimination on the ground of religion or beliefs. That finding

was supported by various rulings of the Constitutional Court and the Supreme Administrative Court

and by the case-law of the European Commission of Human Rights concerning the wearing of

headscarves at universities.

21. The plurality of legal systems proposed by Mr C was nothing to do with the freedom to enter into

contracts as The Party claimed, but was an attempt to establish a distinction between citizens on the

ground of their religion and beliefs and was aimed at the installation of a theocratic regime. Mr C

made the following speech to the National Assembly:

“... ‘you shall live in a manner compatible with your beliefs’. We want despotism to be abolished.

There must be several legal systems. The citizen must be able to choose for himself which legal

system is most appropriate for him, within a framework of general principles. Moreover, that has

always been the case throughout our history. In our history there have been various religious

movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived

in peace. Why, then, should I be obliged to live according to another’s rules? ... The right to choose

one’s own legal system is an integral part of the freedom of religion.”

In addition, Mr C had spoken as follows at a The Party conference:

“... we shall guarantee all human rights. We shall guarantee to everyone the right to live as he sees fit

and to choose the legal system he prefers. We shall free the administration from centralism. The State

which you have installed is a repressive State, not a State at the people’s service. You do not allow the

freedom to choose one’s code of law. When we are in power a Muslim will be able to get married

before the mufti, if he wishes, and a Christian will be able to marry in church, if he prefers.”

22. The plurality of legal systems advocated by Mr C in his speeches had its origin in the practice

introduced in the first years of Islam by the “Medina Agreement”, which had given the Jewish and

polytheist communities the right to live according to their own legal systems, not according to Islamic

law. On the basis of the Medina Agreement some Islamist thinkers and politicians had proposed a

model of peaceful social co-existence under which each religious group would be free to choose its

own legal system. Mr C had been seeking to replace the single legal system with a plurality of legal

systems.

23. The Constitutional Court further observed that in a plurality of legal systems, as proposed by The

Party, society would have to be divided into several religious movements; each individual would have

to choose the movement to which he wished to belong and would thus be subjected to the rights

and obligations prescribed by the religion of his community. The Constitutional Court pointed out

that such a system, whose origins lay in the history of Islam as a political regime, was inimical to the

consciousness of allegiance to a nation having legislative and judicial unity. It would naturally impair

judicial unity since each religious movement would set up its own courts and the ordinary courts

would be obliged to apply the law according to the religion of those appearing before them, thus

obliging the latter to reveal their beliefs. It would also undermine legislative and judicial unity, the


45

preconditions for secularism and the consciousness of nationhood, given that each religious

movement would be empowered to decree what legal rules should be applicable to its members.

24. In addition, Mr C had made a speech to The Party group in Parliament in which he had advocated

setting up a theocratic regime, if necessary through force:

“The second important point is this: The Party will come to power and a just [social] order will be

established. The question we must ask ourselves is whether this change will be violent or peaceful;

whether it will entail bloodshed. I would have preferred not to have to use those terms, but in the face

of all that, in the face of terrorism, and so that everyone can see the true situation clearly, I feel

obliged to do so. Today the State must take a decision. The Party will establish a just order that is

certain. [But] will the transition be peaceful or violent; will it be achieved harmoniously or by

bloodshed? The citizens must make up their minds on that point.”

25. In a public speech an MP for The Party had issued a clear call to wage a jihad and had argued for

the introduction of Islamic law, making the following declaration:

“We shall certainly call to account those who turn their backs on the precepts of the Koran and those

who deprive Allah’s Messenger of his jurisdiction in their country.”

In another public speech he had said:

“In the hereafter you will be summoned with the leaders you have chosen in this life. ... Have you

considered to what extent the Koran is applied in this country? I have done the sums. Only 39% [of the

rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly

forgotten ... You found a Koranic school, you build a hostel, you pay for a child’s education, you teach,

you preach. ... None of that is part of the chapter on jihad but of that on the peacetime activities.

Jihad is the name given to the quest for power for the advent of justice, for the propagation of justice

and for glorification of Allah’s Word. Allah did not see that task as an abstract political concept; he

made it a requirement for warriors. What does that mean? That jihad must be waged by an army!

The commander is identified ... The condition to be met before prayer is the Islamisation of power.

Allah says that, before mosques, it is the path of power which must be Muslim ... It is not erecting

vaulted ceilings in the places of prayer which will lead you to Paradise. For Allah does not ask whether

you have built up vaulted ceilings in this country. He will not ask that. He will ask you if you have

reached a sufficient level ... today, if Muslims have a hundred liras, they must give thirty to the

Koranic schools, to train our children, girls and boys, and sixty must be given to the political

establishments which open the road to power. Allah asked all His prophets to fight for power. You

cannot name a single member of a religious movement who does not fight for power. I tell you, if I

had as many heads as I have hairs on my head, even if each of those heads were to be torn from my

shoulders for following the way of the Koran, I would not abandon my cause ... The question Allah will

ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of

an Islamic State?’ He who incites the Muslim community to take up arms before political power is in

Muslim hands is a fool, or a traitor doing the bidding of others. For none of the prophets authorised

war before the capture of State power. ... Muslims are intelligent. They do not reveal how they intend


46

to beat their enemy. The general staff gives orders and the soldiers obey. If the general staff reveals

its plan, it is up to the commanders of the Muslim community to make a new plan. Our mission is not

to talk, but to apply the war plan, as soldiers in the army ...”

26. In a public speech one Party MP had encouraged discrimination between believers and non-

believers and had predicted that if the supporters of applying sharia came to power they would

annihilate non-believers:

“Our homeland belongs to us, but not the regime, dear brothers. The regime belongs to others. ... The

State will be destroyed, gentlemen. People say: Could the State become like Algeria? Just as, in

Algeria, we got 81% [of the votes], here too we will reach 81%, we will not remain on 20%. Do not

waste your energy on us – I am speaking here to you, to those ... of the imperialist West, the

colonising West, the wild West, to those who, in order to unite with the rest of the world, become the

enemies of honour and modesty, those who lower themselves to the level of dogs, of puppies, in order

to imitate the West, to the extent of putting dogs between the legs of Muslim women – it is to you I

speak when I say: ‘Do not waste your energy on us, you will die at the hands of the people.’ ”

27. On the basis of the evidence adduced by Principal State Counsel’s Office, the Constitutional

Court held that the following further evidence confirmed that The Party was a centre of activities

contrary to the principle of secularism:

– By a decree the cabinet (in which the Party members formed a majority) had reorganised working

hours in public establishments to make allowances for fasting during Ramadan. The Supreme

Administrative Court had annulled this decree on the ground that it undermined the principle of

secularism.

28. The Constitutional Court observed that it had taken into consideration international human-

rights protection instruments, including the Convention. It also referred to the restrictions authorised

by the second paragraph of Article 11 and Article 17 of the Convention. It pointed out in that context

that The Party’s leaders and members were using democratic rights and freedoms with a view to

replacing the democratic order with a system based on sharia. The Constitutional Court observed:

“Democracy is the antithesis of sharia. [The] principle [of secularism], which is a sign of civic

responsibility, was the impetus which enabled the State to move on from Ummah [the Muslim

religious community] to the nation. With adherence to the principle of secularism, values based on

reason and science replaced dogmatic values. ... Persons of different beliefs, desiring to live together,

were encouraged to do so by the State’s egalitarian attitude towards them. ... Secularism accelerated

civilisation by preventing religion from replacing scientific thought in the State’s activities. It creates a

vast environment of civic responsibility and freedom. The philosophy of modernisation of the State is

based on a humanist ideal, namely living in a more human way. Under a secular regime religion,

which is a specific social institution, can have no authority over the constitution and governance of

the State. ... Conferring on the State the right to supervise and oversee religious matters cannot be

regarded as interference contrary to the requirements of democratic society. ... Secularism, which is

also the instrument of the transition to democracy, is the philosophical essence of life in the State.


47

Within a secular State religious feelings simply cannot be associated with politics, public affairs and

legislative provisions. Those are not matters to which religious requirements and thought apply, only

scientific data, with consideration for the needs of individuals and societies.”

The Constitutional Court held that The Party pursued activities aimed at bringing the democratic

order to an end and used its freedom of expression to issue calls to action to achieve that aim, the

Constitution and supranational human-rights protection rules authorised its dissolution.

29. The Constitutional Court observed that the public statements of The Party’s leaders had directly

engaged The Party’s responsibility with regard to the constitutionality of its activities. It further

observed that the public statements had likewise engaged The Party’s responsibility since it had not

reacted to them in any way or sought to distance itself from them, or at least not before the

commencement of the dissolution proceedings.


48


49

How to balance rights in court (Case IV):

Right to family life and asylum

Groups 7 and 8


50


51

CASE IV OF APPLICANT(S) v. STATE

JUDGMENT


52

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1. The first applicant was born in 1969 and the second applicant in 1976, both in the Republic of

Kolov. Their children R., L. and B. were also born in Kolov in 1996, 1998 and 2005 respectively. The

applicants have a fourth child, E., who was born in the State in 2012. They all live in the State.

2. In June 2000 the first applicant entered the State, where he applied for asylum. His asylum

request was rejected by the Office for Migration in November 1999 and it ordered that he should be

expelled. The expulsion was not executed, and in May 1999 the first applicant received a temporary

residence permit for the State.

3. In February 2002 the first applicant married a State national. In March 2007 he received a

permanent residence permit for the State. In August 2008 he got divorced.

3. In January 2009 he married the second applicant - whom he had known since 1995 and with

whom he had had the three children in Kolov. The second applicant entered the State in April 2009

with a visa. In June 2009 the first applicant applied for a residence permit for the second applicant on

the ground of family reunification. The second applicant announced her arrival in the State in June

2009. When she filled in the arrival form she left the question regarding family members

unanswered. In September 2009 the Office for the Migration Office granted her a residence permit

valid until April 2014.

4. In December 2009 the second applicant applied to the State representation in Kolov for residence

permits on the ground of family reunification for the three children, R., L. and B. She enclosed with

the application the birth certificates of the three children, which named the first applicant as the

father. On the basis of that application the Migration Office decided in June 2010 to investigate the

applicants’ family situation. Both applicants, as well as the first applicant’s ex-wife, were interviewed.

On this occasion the ex-wife declared that the first applicant “had abused her naivety and her good

will” and “had lied to her by hiding from her the fact that he had children, especially one born during

their marriage”.

The first applicant in turn stated that he had hidden those facts from his ex-wife because “his

relationship with the second applicant was not a serious one at that time” and “he was not sure

whether he was the father of the children”. Further, “[he] did not know then whether he was going

to marry the second applicant”. In December 2010 the second applicant wrote another letter to the

Migration Office, informing it that her oldest daughter, L., had fallen seriously ill and had been

hospitalised in Kolov. L.’s only relative who could care for her in Kolov was her elderly grandmother.

She therefore urged the Migration Office to decide the matter promptly. She attached a medical

certificate of December 2010 issued by the children’s hospital in Kolov, which stated that L. was

suffering from rheumatic fever.

5. In January 2011 the Migration Office informed the second applicant that it was minded to refuse

the request for residence permits for the children on the ground of family reunification. The


53

Migration Office held that neither she nor the first applicant had previously mentioned the existence

of the three children, and it doubted whether the first applicant was in fact the father of the three

children. The second applicant was however given the opportunity to contest those findings within a

time-limit.

6. By a letter of March 2011 the second applicant answered that she had never concealed the

existence of her three children from the State authorities. She explained that when she had entered

the State she had had no knowledge of the language and had had to “improvise” when completing

the entry form. That was why she had not answered the question regarding her children. However, in

her personal visa application to the State representation in Kolov in 2010 she had revealed the

identity of her three children. She stated furthermore that her children had been mentioned

regularly in the tax declarations to the State authorities, and that the first applicant’s employer in the

State had paid child allowances for them for many years. Therefore, the State authorities had always

been aware of the existence of the children. As evidence she attached a copy of the tax declaration

for the year 2009.

7. In April 2011 the Migration Office refused the applicants’ request for family reunification with

their children. It ruled that neither the first nor the second applicant had mentioned the existence of

their three children when they entered the State, and they doubted that the first applicant was the

father of the three children. They established that the applicants had not conducted themselves

correctly with regard to the application, and accordingly they were no longer entitled to family

reunification. The applicants did not appeal against this decision and it became final.

8. In August 2011, the three children, R., L. and B., entered the State clandestinely.

9. In April 2012 the second applicant gave birth to a fourth child, E.

10. By a letter of May 2012 the first applicant informed the Migration Office that R., L. and B. had

been living in the State illegally since August 2011. He explained that it had been urgent to bring

them to the respondent State because L.’s chances of recovery were better in the State.

Furthermore, he alleged that it had been for various reasons impossible for the children to remain in

their home country. In 2011 the Migration Office officially registered the entry of the three children

into the State in August 2012, and noted that the applicants had submitted a request for residence

permits for them on the ground of family reunification.

11. In July 2012 the Migration Office informed the applicants that it intended to dismiss their

request. It established that the applicants had brought the children to the State illegally despite the

negative decision of the Migration Office of April 2011. Therefore, the applicants had acted contrary

to the rules of the immigration authorities. The Migration Office also reiterated that the children’s

existence had previously been concealed from the State authorities, and that the paternity of the

first applicant had not been established. In addition, the legal requirements for family reunification

had not been met. According to the Foreign Nationals, the right to family reunification had to be

exercised within five years after the granting of a residence permit to the family member. This time-

limit was only twelve months if the children were more than twelve years old. The request regarding


54

R. and L., aged fifteen and fourteen respectively at the time of the application, was therefore late.

Conversely, the request for B., aged seven at that time, was within the set time-limit. The Migration

Office however found that, according to a rule of the directive regarding family reunification, the

purpose of a residence permit on the ground of family reunification was to enable all the members of

a family to live together in the respondent State. Since R. and L. did not fulfil the prerequisites for a

residence permit, it was not possible for the whole family to live together in the State. Therefore, in

the case of B. the requirements for family reunification were not met either. The Migration Office

further added that, given that the second applicant had been granted a residence permit in

September 2009, the applicants had waited quite a while before applying for family reunification,

and they had not cited any other important family reasons for seeking reunification. Finally, they

established that R., L. and B. had lived their entire lives in their home country of Kolov, where they

had attended school, that the two oldest siblings would soon attain the age of majority and that in

the circumstances of the case it remained doubtful whether it had always been the applicants’ true

intention to construct family life in the State. The Migration Office gave the applicants another

opportunity to contest those findings.

12. By a letter of July 2012 the applicants informed the Migration Office that they wanted to

maintain their request. They affirmed that the children had come to live in the State because their

grandmother, with whom they had been living in Kolov, was old and could no longer care for them.

Furthermore, it had always been the intention of the applicants to be reunited with their children

once the second applicant had obtained a residence permit in the State; this was illustrated by the

first request for family reunification, made in December 2009. They held that they could not be

reproached with tardiness in applying for family reunification, because it was the Migration Office

which had taken a year and four months to decide on the first application. They further reiterated

that they had never attempted to deceive as to the existence of the children, and they indicated that

a refusal to issue residence permits to the three children would breach of the Convention and be

against their best interests as children. Finally, they drew attention to the birth of the applicants’

fourth child and the risk that a refusal of family reunification would separate the siblings.

13. By a decision of August 2012 the Migration Office rejected the applicants’ request for family

reunification with their three children, on the grounds given previously. It further ordered that the

children had to leave the State within a month of the notification of the decision.

14. The applicants and their children appealed against this decision to the Administrative Court.

They attached State school certificates for R., L. and B. which stated that they were well integrated in

the State. In particular, the applicants reiterated that, if returned to their home country, the children

would be obliged to live in an orphanage, because their grandmother was no longer able to care for

them. Furthermore, they stated that the first applicant had always been officially recognised as the

father of the children and that he had regularly visited them and financially supported them in Kolov

as well as now in the State.

15. At the Cantonal Court’s request, a DNA examination was conducted. In a report of December

2012 the Centre of Legal Medicine established that the applicants were indeed the parents of the

three children.


55

16. By a fax of February 2013 the Administrative Court asked the State embassy in Kolov to send it a

copy of the visa application the second applicant had made in March 2009, in which she had

allegedly mentioned the existence of her three children. In its answer the embassy informed the

Court that it could not provide a copy of the visa application because in accordance with internal

instructions it had been destroyed after two years.

17. By a decision of March 2013 the Court dismissed the applicants’ appeal. It first concluded that

the decision of the Migration Office of April 2011 had indeed become final. Therefore, only the facts

as presented by the request for family reunification made 1n June 2012 were relevant. On the

merits, the Court established that the domestic law indicated that the request for residence permits

on the ground of family reunification for R. and L. had been submitted late. Residence permits could

therefore only be issued to them if there were important family reasons as set out in the law.

“Important family reasons” were given when the best interests of the child could only be guaranteed

by family reunification in the State. The Court however considered that in the case of R. and L. no

such important family reasons could be identified; in particular, the positive development of L.’s

recovery would not justify the permanent establishment of the children in the State. Regarding the

request of B., the Court reiterated the applicants had failed to establish that their private interest in a

family reunification outweighed the public interest of the respondent State in controlling the entry of

foreigners into its territory, although the second applicant had applied within the legal time-limit. In

particular, it held: that in light of the statements made by the first applicant’s ex-wife, the applicants

had engaged in deliberate deception between July 1999 and December 2009 as regards the existence

of their three children; that this dissimulation alone justified the refusal of the children’s residence

permits, because it breached public order; that the applicants had illegally brought the children to

the State and thereby presented the authorities with a fait accompli; that the applicants had not

substantiated the age of the children’s grandmother in Kolov and had not produced any medical

evidence that the grandmother was no longer in a position to care for them; and that neither the

birth of the fourth child nor the three children’s positive (State) school certificates were decisive

elements which would justify the issuing of residence permits. The application for residence permits

for the three children should therefore be dismissed.

18. The applicants and their children appealed to the Supreme Court against the Court’s decision.

They argued in particular that the Court had not considered whether the refusal of the residence

permits for the children was in breach of the European Convention. Furthermore, they claimed that

expulsion of the three children would violate the Convention, because in their home country the

children would have to be dependent on social services or be sent to an orphanage.

19. By a decision of November 2013 the Federal Supreme Court rejected the applicants’ appeal. It

endorsed the Court’s findings, and ruled that the refusal of the residence permits was proportionate

under domestic law as well as under the Convention. It further ruled that the applicants’ claim of a

breach of the Convention in the event of the children’s expulsion to Kolov was manifestly ill-founded.


56


57

How to balance rights in court (Case V):

Right to assembly

Groups 9 and 10


58


59

CASE V OF APPLICANT v. STATE

JUDGMENT


60

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1. The applicant was born in 1978 and lives in the city of Bupa. 2. On 18 May 2006 “the Association” was founded by ten members of the political party

“Movement for a Better State”, with the stated aim of, inter alia, preserving State traditions and culture.

3. In its turn, on 28 July 2006 the Association founded “the Movement”. The Association stated that it had decided to “create the Guard, first operating it as a movement but later attempting to integrate it into the Association as a section.” It was also decided that “in order to integrate the Guard into the Association, [the latter’s current] charter needs to be amended by 12 October 2006.”

The Movement’s objective was defined as “defending a physically, spiritually and intellectually defenceless State”. The tasks undertaken by the Movement, as listed in its deed of foundation, included the physical and psychological training of its members, participation in disaster management and in ensuring public safety, as well as the initiation of a social dialogue regarding these issues through public events.

4. On 4 October 2006 the Bupa public prosecutor’s office addressed a notice to the Association calling on it to terminate its unlawful activities. It was noted that the Association had carried out activities that were not in accordance with its aims as defined in its charter. In particular, it was observed that on 5 August 2006 it had organised the swearing-in of fifty-six “guardsmen” in Bupa. Subsequently, the Association had conducted a national campaign aimed at popularising tasks defined for the Movement which were not in accordance with the aims of the Association. It was noted that certain aims of the Movement were not amongst those defined for the Association, nor were they in conformity with the Association’s cultural and tradition-preserving nature.

On 7 November 2006 the applicant, as chairman of the Association, notified the public prosecutor’s office that the unlawful activities had been terminated by deleting the impugned part from the Movement’s deed of foundation, and that he had initiated the amendment of the Association’s charter. Accordingly, on 7 December 2006 the General Assembly of the Association had decided to add the following provision to paragraph 2 of its charter: “(f) In accordance with its name, the Guard Association has the aim of engaging in dialogue with society and of holding public events and gatherings for citizens on issues affecting their security, such as disaster management, national defence and life-saving techniques”.

5. Purportedly in pursuit of these goals, members of the Movement dressed in uniform subsequently held rallies and demonstrations throughout the State, including in villages with large Roma populations, and called for the defence of “ethnic State citizens” against so-called “Gypsy criminality”. These demonstrations and rallies were not prohibited by the authorities.

One of these demonstrations, involving some 200 activists, was organised in a village of around 1,800 inhabitants, on 9 December 2006. The police were present and did not allow the march to pass through a street inhabited by Roma families.


61

6. In reaction to this event, on 17 December 2006 the Bupa Chief Prosecutor’s Office lodged a court action seeking the dissolution of the Association. The action was based on the Association’s alleged abuse of the right to freedom of assembly and the fact that it had conducted activities which infringed the rights of the Roma by generating fear among them through speeches and appearance, that is to say, by the activists wearing uniforms, marching in formation and issuing military-style commands.

The Chief Prosecutor’s Office was of the view that the Movement constituted a division of the Association, and that its activity in fact represented a significant part of the latter’s activities. It argued that the Movement was not a “spontaneous community”, in that its members were all registered, and stressed that it had been created by the presidency of the Association, that applications for membership were assessed by the Association and that its uniform could be bought from the Association.

7. In the ensuing proceedings the Association claimed, however, that there were no organisational ties between itself and the Movement of a kind amounting to a unity of the two; accordingly, it argued that it bore no responsibility for the Movement. It also stated that, in any event, the Movement’s activities did not present any objective danger to anyone. According to the Association, a subjective feeling of fear could not give rise to any limitation on fundamental rights, including freedom of assembly; the Movement’s conduct had not been intimidating if regarded objectively.

8. After holding four hearings the Bupa Regional Court ruled in favour of the Chief Prosecutor’s Office on 16 December 2007 and disbanded the Association under section 16(2) (d) of Act no. II of 1989 on the right to freedom of association (see paragraph 13 below).

The court did not accept the arguments concerning the distinction between the two entities and held that a “symbiotic relationship” existed between them. It held that the principal activity of the Association had been the founding, operation, guidance and financing of the Movement, observing, inter alia, that the Movement received donations through the Association’s bank account. The legal effect of the judgment was nevertheless limited to the dissolution of the Association; since in the court’s view the Movement did not have any legal personality, the judgment did not directly extend to it.

As regards the assembly in the Village, the Regional Court held as follows:

“The essential purpose of the event was indeed to place the spotlight on ‘Gypsy criminality’. The use of this generalisation, clearly based on racial and ethnic grounds, violated the principle of equal human dignity ... Moreover, this was not a one-off occasion ... [The Movement] based its programme on discrimination between people and expressed it by way of marches in several cases; this amounted to a demonstration of power and to threatening others through the appearance [of the participants in the marches]. ... The court is of the opinion that, from a constitutional point of view, to raise fear, virtually as a mission, is unacceptable as an aim or role.”

9. The court noted that the participants, who were uniformed, had worn armbands quite similar to those of officers of the Arrow (responsible for the reign of terror in the State in 1942/43). It took the view that marches with participants dressed in this way were objectively capable of wounding “historical sensitivities”.

The court went on to declare that, despite the Association’s stated purpose, its actions had violated the State´s laws on associations and created an atmosphere of anti-Roma sentiment. According to the court, the verbal and visual demonstration of power alone amounted to an infringement of the law, in the light of historical experience; thus, for the


62

Association to be dissolved it was not necessary for it to have committed an actual offence: the fact that its programme encompassed discrimination amounted to prejudicing the rights of others within the meaning of section 2(2) of [Act no. II of 1989] (see paragraph 18 below).

20. On 2 July 2008 the Bupa Court of Appeal upheld the judgment of the Regional Court. It also considered two further similar demonstrations staged by the Movement, in two other villages on unspecified dates. The Court of Appeal noted that the speeches given by Movement members in the course of the rallies had contained numerous remarks aimed at the exclusion of Roma people and that there had been several anti-Semitic utterances.

This court established a closer connection between the two entities, extending the scope of its judgment also to the Movement. The court held that the Association in fact included the Movement as a “unit”; consequently, the judgment concerned both of them. The Association’s dissolution also dismantled the organisational framework of individuals operating within any movements related to the dissolved association.

The court ruled that the choice of locations for the demonstrations, that is, villages with large Roma populations, could not be seen as social dialogue, but as an extreme form of expression in the context of a quasi-military demonstration of force consisting of the cumulative effects of military-style uniforms, formations, commands and salutes. The Court of Appeal, while it upheld in essence the arguments of the Regional Court, argued that the population of the villages had been subjected as a “captive audience” to these extreme and exclusionist views without being able to avoid receiving them. In the court’s view, the events organised by the Movement constituted a risk of violence, generated conflict, breached public order and peace and violated the right to liberty and security of the inhabitants of the villages, despite the fact that all the demonstrations, which were tightly controlled by the police, had finished without any acts of actual violence.

The court also considered the applicant’s freedom of expression. It stated, upholding the arguments of the first-instance judgment and citing the case-law of the Court, that this freedom did not cover hate speech or incitement to violence.

3. On 15 December 2008 the Supreme Court upheld the judgment of the Bupa Court of Appeal. It endorsed the Court of Appeal’s finding that the Movement was in fact an entity within the Association. It also agreed with the lower courts as to the necessity of disbanding the Association, pointing out that the Movement’s rallies had caused situations of conflict whose protagonists might potentially have had recourse to violence.

This decision was served on 28 January 2009.

II. RELEVANT DOMESTIC LAW

12. The Constitution, as in force at the material time, contained the following provisions:

Article 2

“(3) The activities of social organisations, government bodies or individual citizens may not be directed at the forcible acquisition or exercise of public power, or at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as are permitted by law.”


63

Article 63

“(1) In the State every person has the right, on the basis of the right of association, to establish organisations whose goals are not prohibited by law and to join such organisations.

(2) The establishment of armed organisations with political objectives shall not be permitted on the basis of the right of association.

(3) A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the right of assembly and the financial management and operation of political parties.”

43. Act no. II of 1989 on the right to freedom of association provides as follows:

Section 2

“(1) By virtue of the right of association private individuals, legal persons and their entities which have no legal personality may, subject to the aims of their activities and the intention of their founders, form and operate civil society organisations.

(2) The exercise of the right of association may not violate Article 2 (3) of the Constitution, nor may it constitute a criminal offence or incitement to a criminal offence, and may not prejudice the rights and liberties of others.”

Section 3

“(1) A civil society organisation is a voluntarily established self-governing organisation formed for a purpose stated in its articles of association, which has registered members and organises its members’ activities in order to further its purpose.

(2) Unregistered members may also participate in large-scale public events.”

Section 4

“(1) ... a civil society organisation comes into existence by means of registration with the courts.”

Section 5

“A community of private individuals formed by virtue of the right of association, whose operation is not regular or which has no registered members or structure specified under this Act, shall not constitute a civil society organisation.”

Section 16

“(2) Upon an action brought by the public prosecutor, the court:

(d) shall dissolve the civil society organisation if its operation violates section 2(2); ...”

14. Act no. LXXVII of 1993 on the rights of national and ethnic minorities, as in force at the material time, provided as follows:

Section 4

“(1) The State prohibits all policies or conducts which:

(a) are aimed at or result in a minority’s assimilation into, or exclusion or segregation from, the majority nation;

(b) aim to change the national or ethnic composition of areas populated by minorities;

(c) persecute, impair the lives of or hamper the exercise of the rights of a minority or persons belonging to a minority on account of their belonging to a minority; ...”


64

15. Law-Decree no. 8 of 1976, promulgating the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations at its XXIth session on 16 December 1966, provides as follows:

Article 20

“2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

16. Law-Decree no. 8 of 1969, promulgating the International Convention on the Elimination of All Forms of Racial Discrimination adopted at New York on 21 December 1965, provides as follows:

Article 1

“1. In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

Article 2

“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ...

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; ...”

Article 4

“States Parties condemn all propaganda and all organizations which ... attempt to justify or promote racial hatred and discrimination in any form, and undertake to ...

(a) declare an offence punishable by law all ... incitement to racial discrimination ... and also the provision of any assistance to racist activities, including the financing thereof;

(b) declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite to racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; ...”

17. Decision no. 30/1992 (V. 26) AB of the Constitutional Court contains the following passages:

“II. 3. The criminal codes of all democratic European countries with continental legal systems, as well as those of England and Wales, Canada and New Zealand. which have the Anglo-Saxon legal system, prohibit incitement on a ‘racial’ basis. The demarcation of the boundary between incitement, arousal of hatred and expression of opinion remains hotly contested even internationally.

IV. 1. The potential harms resulting from incitement to hate, and from humiliating expressions of contempt for certain groups in a population are amply documented in the annals of human experience. ...

The tragic historical experiences of our century prove that views preaching racial, ethnic, national or religious inferiority or superiority and the dissemination of ideas of hatred, contempt and exclusion endanger the values of human civilization.

It is proved both by history and by the events of our times that any utterance expressing an intention to arouse hatred against a specific group of people can push social tension to extremes, disturb social


65

harmony and peace and in an extreme case can result in violent clashes between certain groups of society.

In addition to the historical and contemporary experiences proving the extremely damaging effects of arousing hatred, it is necessary to consider the everyday threats that result from the unlimited expression of ideas and concepts liable to arouse hatred. Such expression prevents human communities from living in harmony with other groups. By intensifying emotional and social tensions within a smaller or bigger community, this can destroy ties within the society, reinforce extreme positions and increase prejudice and intolerance. All this results in a diminution of the chances of creating a tolerant and multicultural society which acknowledges pluralism, the right to be different and the equal dignity of all people, and in which discrimination is not regarded as a value.

2. To afford constitutional protection to incitement to hatred against certain groups under the guise of freedom of expression and of the press would present an irresolvable contradiction with the value system and political orientation expressed in the Constitution, that is, with the democratic rule of law, the equality of human beings, equal dignity, the prohibition of discrimination, freedom of religion and conscience and the protection of national and ethnic minorities, as recognised by the various Articles of the Constitution. ...

Incitement to hatred is a negation of the above-mentioned notions, an emotional preparation for the use of violence. It is an abuse of freedom of expression, being an intolerant classification of a group characteristic of dictatorships rather than democracies. To tolerate the exercise of freedom of expression and of the press in a manner prohibited by Article 269 (1) of the Criminal Code would contradict the requirements flowing from the democratic rule of law. ...

As a summary of its position, the Constitutional Court points out that the restriction of freedom of expression and of the press is necessitated and justified by the negative historical experiences surrounding the arousal of hatred against certain groups of people, by the protection of constitutional values and by the obligation of the State to comply with its commitments under international law. ...”

18. Decision no. 14/2000 (V. 12) AB of the Constitutional Court contains the following passages:

“3. The freedom to express one’s opinion is not only a subjective right but also a guarantee of the free expression of various views shaping public opinion. ...

Although this right can be restricted, it enjoys special protection due to its primary role, and thus may be restricted only in relation to a few other rights. Therefore, secondary theoretical values such as public peace enjoy less protection than the right concerned. ...

Like the right to life, the right to human dignity is eminently protected in the Constitution ... The Constitution is not value-neutral but has its own set of values. Expressing opinions inconsistent with constitutional values is not protected by Article 61 of the Constitution. ...

The Constitutional Court points out that, also under the Convention, freedom of expression carries with it ‘duties and responsibilities’. All State authorities are obliged to protect the values of a democratic State under the rule of law and to respect the dignity of persons. Action must be taken against conduct representing force, hatred and conflict. Rejecting the use or threat of force as a means of solving conflicts is part of the complex concept of democracy.”

19. Decision no. 18/2004 (V. 25) AB of the Constitutional Court contains the following passage:

“III. 2.1. ... Even in the case of extreme opinions, it is not the content of the opinion but the direct and foreseeable consequences of its communication that justifies a restriction on free expression and the application of legal measures under civil or, in some cases, criminal law.”


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20. Decision no. 95/2008 (VII. 3) AB of the Constitutional Court contains the following passages:

“III. 3.4. ... The aim of the amendment [to the Criminal Code] is to punish hate speech and gestures even if the injured party cannot be identified. As a result, however, the amendment would punish not only conduct violating the honour and dignity of particular persons but all forms of hate speech, including racist statements containing generalisations, meaning that the ‘affected’ parties or the parties that consider themselves to be ‘affected’ are not forced to take part in or follow the exchange of communication between persons expressing hatred or to face hate thoughts in certain media outlets. ... Extremist voices are not suppressed in constitutional democracies simply on account of their content. In a democratic society such generalising, racist speech cannot change the fact that, from the State’s perspective, each citizen is equally valuable and has the same basic rights.

In its present form, the amendment would also punish speeches containing only such generalisations. Participation in the communication by persons belonging to the group being attacked, that is, their listening to or being exposed in any way to the racist statements, is not a statutory element of the offence as defined in the amendment.

However, these are precisely the cases in which the expression of an opinion may offend not only the sensitivity or sense of dignity of certain persons but also their constitutional rights. For example, if a perpetrator expresses his extremist political convictions in such a manner that a person belonging to the injured group is forced to listen to the communication in a state of intimidation, and is not in a position to avoid it [‘captive audience’] ... In this case, the right of the person concerned not to listen to or become aware of the distasteful or injurious opinion deserves protection. ...

Persons belong not only to the community of citizens but also to a narrower group or community. An individual can, also by virtue of belonging to such a group, be exposed to an injury of such gravity and intensity that recourse to criminal-law sanctions may even be warranted to redress the issue.”


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