Luzius Wildhaber
President of the European Court of Human Rights
Aspects
of the freedoms of expression and association under
the European Convention on Human Rights: Articles 10 and 11
Pierre-Henri Teitgen, often referred
to as the father of the European Convention on Human Rights, described
the objective of that instrument as "defining the seven, eight or
ten fundamental freedoms that are essential for a democratic way of life".
Indeed we can only fully understand the Convention if we see it from that
perspective as a means of preserving the core values of democracy. The
essence of human rights protection under the Convention is to be found
in the principles of democracy and the rule of law. The rule of law provides
the framework for the effective operation of democracy. Democracy without
the rule of law is no democracy; the rule of law without democracy is
no rule of law, at least as understood in the European Convention and
the case-law of the European Court of Human Rights.
So what are those fundamental rights
and freedoms "essential for the democratic way of life"? Of
course there are the rights which respect the physical integrity and dignity
of human beings, the sanctity of life in its broadest sense. There are
the rights which guarantee due process in criminal and civil proceedings
as well as protection against arbitrary detention. There is the guarantee
of respect for family and private life. Then there are the rights and
freedoms which make possible normal and active participation in democratic
society, notably the freedom of expression under Article 10 of the Convention
and freedom of association under Article 11. It is these two Articles
that I would like to consider in this paper. The two Articles are linked.
As the Court has observed, the protection of personal opinions, secured
by Article 10, is one of the objectives of the freedoms of assembly and
association as enshrined in Article 11 . Moreover the structure of the
two Articles is more or less identical: a first paragraph which broadly
defines the freedom protected and a second paragraph which identifies
the circumstances in which restrictions may be placed on those freedoms.
The Court's case-law has concentrated on the latter aspect, that is the
justification of such restrictions. Its examination of that justification
comprises three stages or three tests. Is the measure complained of prescribed
by law? Does it pursue one or more of the legitimate aims set out in the
provision? And finally is it necessary in a democratic society to attain
such aim or aims? It is the third test which has most often proved decisive.
But first a few more words about
the relationship between the Convention and democracy are called for.
As it has been interpreted by the European Court the Convention is infused
with a profound respect for the democratic process to the extent that
it not only recognises, as I have said, that restrictions on certain fundamental
rights may be "necessary in a democratic society". It also accepts
that deference should be accorded to national democratic institutions
in determining what is necessary. This notion of subsidiarity is present
either expressly or by implication throughout the Convention. It is not
merely the practical question of the proximity to events of national authorities
and the sheer physical impossibility for an international court, whose
jurisdiction now covers 44 States with a population of some 800 million
inhabitants, to operate as a tribunal of fact. It also embraces a degree
of deference or respect. It is not the role of the European Court systematically
to second-guess democratic legislatures. It is certainly not equipped
to do so. What it has to do is to exercise an international supervision
to ensure that the solutions found do not impose an excessive or unacceptable
burden on one sector of society or individuals. The democratically elected
legislature must be free to take measures in the general interest even
where they infringe individual interests. The balancing exercise between
such competing interests is most appropriately carried out by the national
authorities.
There must however be a balancing
exercise and this implies the existence of procedures which make such
an exercise possible. Moreover the result must be that the measure taken
in the general interest bears a reasonable relationship of proportionality
both to the aim pursued and the effect on the individual interest concerned.
In that sense the area of discretion accorded to States, what we in Strasbourg
call the margin of appreciation, will never be unlimited and the rights
of individuals will ultimately be protected against the excesses of majority
rule. This margin of appreciation is a necessary element inherent in the
nature of international jurisdiction when applied to democratic States
that respect the rule of law. The international judge owes a degree of
deference to decisions taken by national democratic institutions in full
compliance with the rule of law, and although that deference will never
exclude the international review completely, it will call for some measure
of judicial self restraint at international level.
Coming then to Article 10 of the
Convention and the freedom of expression: this is where the operation
of the mechanism that I have just described is perhaps best observed.
The cases show that as the expression gets closer to the core operation
of democracy, so the margin of appreciation contracts. Thus it can hardly
ever, if at all, be necessary in a democratic society to restrict speech
which amounts in effect to participation in public debate on a matter
of general interest, even if couched in excessive terms and involving
insulting or defamatory language directed at private individuals . The
right to express political ideas and to engage in political activities
is so fundamental to democratic society that democratic legitimacy cannot
logically be invoked against it.
In the first attempt by the Strasbourg
Court to enounce clear principles for the operation of freedom of expression
under the European Convention on Human Rights, it made the much repeated
ringing declaration that freedom of expression "constituted one of
the essential foundations of [democratic] society, one of the basic conditions
for its progress and for the development of every man" . This ultimately
goes back to Article 11 of the French Declaration of the Rights of Man
and of the Citizen of 1789 which affirmed that the right freely to express
one's opinion was one of the most precious rights of man, "un des
droits les plus précieux de l'homme". In the Handyside case
the European Court continued that this right is "applicable not only
to 'information' or 'ideas' that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb the State or any sector of the population". Such
were, the Court said, "the demands of that pluralism, tolerance and
broadmindedness without which there is no 'democratic society'" .
But how far does such a "right
to offend" extend? It seems clear that it does not cover hate speech
or incitement to violence . Nor does the right to offend, as interpreted
by the Court in some older cases, appear to protect expression that is
regarded as obscene or offensive to the majority moral attitudes of the
community concerned , although there is always European supervision as
to what restrictions are necessary in a democratic society. What the right
to offend is intended to guarantee is the participation in the democratic
process through public debate of questions of general concern. The strength
of the protection offered will depend on the extent to which the expression
can be linked to the direct functioning of democratic society.
Mr Handyside, the applicant in
that landmark case, had been convicted and fined after he had published
a book aimed at schoolchildren, containing explicit guidance on a number
of controversial matters, including sex. He was soon to learn that the
right so resoundingly proclaimed by the Court was not unlimited. As I
have indicated, the very structure of Article 10 makes it clear that freedom
of expression under the Convention was never intended to be as purportedly
absolute as in for instance the United States under the First Amendment.
I reiterate that under paragraph 2 of Article 10 restrictions on the protected
right may be permitted provided that they are prescribed by law, that
is that they have a basis in law which must satisfy certain requirements
of accessibility and foreseeability; that they pursue at least one of
the aims defined by paragraph 2 of the Article; and finally that they
be "necessary in a democratic society" to attain the legitimate
aim or aims identified. Those legitimate aims include "the prevention
of disorder or crime, the protection of health or morals, the protection
of the reputation and the rights of others" or again "maintaining
the authority and impartiality of the judiciary".
The case of Handyside laid down
the leading principles for the application of these tests and particularly
those relating to the margin of appreciation. The Court defined the concept
of necessity as reflecting a "pressing social need". Under the
margin of appreciation approach it was for the national authorities to
make the initial assessment of that need or, to put it another way, balance
the relevant competing interest against that of freedom of expression.
Thus the Court recognises that this is an issue in respect of which State
authorities are in principle in a better position than the international
judges to give an opinion, as the Court put it, "by reason of their
direct and continuous contact with the vital forces of their countries"
. The Court's role is a supervisory one, encompassing a determination
of whether the interference was proportionate to the legitimate aim pursued
and whether the reasons adduced by the national authorities to justify
it are "relevant and sufficient" . In the Handyside case, the
Court reached the conclusion that there had been no violation of Article
10, referring notably to the margin of appreciation.
The freedom of the press occupies
a particularly important place in the Court's case-law under Article 10.
The Court has consistently highlighted the role of the press in a democratic
society, notably in connection with its duty to impart information and
ideas on matters of public interest. Not only does it have the task of
imparting such information and ideas, the public also has a right to receive
them. The Court has stressed the vital function of the press as a "public
watchdog" .
The Court has thus been at pains
to ensure that defamation proceedings are not used to extinguish criticism
of public figures and especially politicians.
An early case established that
politicians were in a special category. An Austrian journalist had criticised
the then Chancellor, Bruno Kreisky, for, among other things, his allegedly
over-accommodating attitude to former Nazis. He called Kreisky amoral
and lacking in dignity. Following a private prosecution, the journalist,
was convicted of criminal defamation and fined. Underlining the crucial
role of the press in imparting information, the Court rejected the notion
accepted by the Austrian courts that information should be imparted in
such a way as to leave its interpretation to the reader. "Freedom
of the press", said the Court in a well-known passage, "affords
the public one of the best means of discovering an opinion of the ideas
and attitudes of political leaders". Freedom of political debate
was at the very core of the concept of democratic society which prevailed
throughout the Convention .
It followed that the limits of
acceptable criticism were wider as regards a politician than for a private
individual. A politician inevitably and knowingly laid himself open to
close scrutiny of his every word and deed. The statements in question
were moreover value-judgments, the truth of which was not susceptible
to proof. The facts on which the applicant had founded his value judgments
were undisputed, as was his good faith. Yet there was no defence of fair
comment under Austrian law, and so the Court found a violation of the
freedom of expression.
The Court has recognised that a
politician was entitled to have his reputation protected even when he
was not acting in his private capacity. However, the requirements of that
protection had to be weighed against the interests of open discussion
of political issues .
The Court has thus distinguished
between statements of fact and value judgments. While the existence of
facts can be demonstrated, the truth of a value judgment is not susceptible
to proof. Requiring the author of a value judgment to prove the truth
of that statement places an impossible burden on him or her and accordingly
in itself infringes freedom of opinion . On the other hand, even where
a statement amounts to a value judgment, the proportionality of an interference
may depend on whether there exists a sufficient factual basis for the
statement. A value judgment without any factual basis to support it may
be excessive and thus fail to attract the protection of Article 10 .
In Austria, a journalist had used
the word "Trottel", which roughly translates as "idiot",
to describe Mr Haider, leader of the Austrian Freedom Party. The Austrian
courts had taken the view that the mere use of the word was sufficient
to justify conviction. The Strasbourg Court observed that in the speech
in question, Haider had stated that all the soldiers who had served in
World War II, whatever side they were on, had fought for peace and freedom
and had contributed to founding today's democratic society. This was clearly
intended to be provocative. The applicant's article, including his use
of the word found to be insulting, could certainly be regarded as polemical,
but did not on that account constitute a gratuitous personal attack as
the author had provided an objectively understandable explanation derived
from Haider's speech. As such the article and the term used were part
of the political discussion provoked by the speech and amounted to an
opinion, whose truth was not susceptible of proof. Such an opinion might
be excessive in the absence of any factual basis, but this was not the
case here .
A recent Estonian case involved
public criticism of the wife of a prominent politician, who had herself
been a senior civil servant. Remarks had been published suggesting that
she had broken up a marriage and was an unfit and uncaring mother. The
applicant was convicted of insulting the woman. The Strasbourg Court noted,
among other things, that the woman's public-figure status was not such
as to substantiate the claim that her private life was an issue that affected
the public at the time when the interview was published. By then her husband
was no longer in government and she had left her post in the civil service.
Looking at the way the Estonian courts dealt with the case, the Court
found that they had fully recognised the conflict between the right to
impart information and the reputation and rights of others and had properly
balanced the competing interests. There had been no breach of the Convention
requirements .
This case sets some cautious limits
on the operation of freedom of expression in respect of the private life
of public figures. It is not every person who has been in the public eye
whose private life can be regarded as a matter of public concern.
The Court has taken a rather different
approach in relation to public criticism of judges. Thus, while it has
accepted that the functioning of the system of justice is undoubtedly
a matter of public interest, it has stressed that the judiciary has to
enjoy public confidence and that it may prove necessary to protect such
confidence against destructive attacks that were essentially unfounded,
particularly in view of the fact that judges were subject to a duty of
discretion which prevented them from replying .
Further proof of the importance
which the Court attaches to freedom of the press may be found in a Norwegian
case. Here the Court examined the obligations of a journalist in relation
to statements of fact. Notably the Court observed that the safeguard accorded
to journalists in relation to reporting on issues of general interest
was subject to the proviso that they were acting in good faith in order
to provide accurate and reliable information according to the ethics of
journalism. The case concerned defamation proceedings brought by crew
members of a seal-hunting vessel against the newspaper Bladet Tromsø.
which had published a report of a seal hunting inspector which contained
allegedly defamatory accusations. The accusations were statements of fact,
for example that seals had been skinned alive, and were based on, or were
directly quoting from, the inspector's report. The newspaper had not conducted
its own research. The Court had to consider whether special circumstances
dispensed the newspaper from its ordinary obligation to verify facts that
were defamatory of private individuals. To determine this, the Court had
regard to the nature and degree of the defamation and examined the question
in the light of the situation as it presented itself to the newspaper
at the time, rather than with the benefit of hindsight after the inspector's
report had been largely discredited. It concluded that the paper could
reasonably rely on the official report without being required to carry
out its own research into the accuracy of the facts. It saw no reason
to doubt that the newspaper had acted in good faith .
Thus the Court has to place itself
in the position of journalists at the material time of publication and
assess the justification of publishing in the light of what they then
knew or should have known. It is on this basis that it will assess the
proportionality of the interference with the legitimate aim pursued. It
is true to say that the scales are heavily weighted in favour of the freedom
of the press, as this case shows. It is the essential role of a free press
in a democratic society which limits the margin of appreciation or area
of discretion available to national authorities in this field.
Ultimately it is the role played
in democratic society by the expression at issue which determines the
level of protection that will be accorded to it. The importance of the
principle of democracy, of democratic society, of the democratic process
in the scheme of the Convention cannot be overstated. This is why the
emphasis is placed on the contribution to a public debate, on the role
of the press, on the active participation in the democratic assimilation
of ideas.
It follows logically that where
it is the speech concerned that threatens to undermine democracy by inciting
to violence, the margin of appreciation accorded to States will be much
wider. In a group of thirteen cases concerning Turkey , the applicants
had all been convicted and sentenced to a term of imprisonment and/or
a fine after publishing statements or making public declarations linked
to the situation in south east Turkey and in particular the Kurdish problem;
the charges included disseminating separatist propaganda and encouraging
violence against the State.
The Court applied the principles
set out in its case-law, stressing the importance of freedom of the press
and public debate in a properly functioning democratic society and reiterating
the very narrow scope for restrictions on political speech. It noted that
the limits of permissible criticism are wider with regard to the Government
than in relation to a private citizen or even a politician. In a democratic
system the actions or omissions of the government must be subject to the
close scrutiny not only of the legislative and judicial authorities, but
also of public opinion. In addition, as the Court pointed out, the dominant
position which the Government occupies makes it necessary for it to display
restraint in resorting to criminal proceedings, particularly where other
means are available for replying to the unjustified attacks and criticisms
of its adversaries.
Where there is incitement to violence
against an individual or a public official or a sector of the population,
State authorities will enjoy a wider margin of appreciation when examining
the need for an interference with freedom of expression. It is, moreover,
open to State authorities to take measures, and even to resort to the
criminal law, where public comments could seriously undermine public order.
In these cases the interference
had to be considered on its facts, in particular in the light of the context
and content of the impugned statements. In other words the Court had to
consider whether the expression in question really did involve a threat
to society, in which case a wide margin of appreciation would have operated
in the Government's favour. If the Court failed to find a sufficient link
between the words used and a real possibility of resulting violence, the
protection offered by the Convention to political speech would prevail.
Looking at the facts and all the circumstances the Court took the view
that the statements in the majority of the cases which were then before
it did not, despite the aggressive language sometimes employed, amount
to incitement to violence or armed revolt. The Court also had to determine
whether the penalties imposed by the authorities were proportionate in
relation to the aims pursued. In fact it was struck by the severity of
the sanctions imposed in these cases, typically a jail sentence of some
one and a half years and a substantial fine. These considerations led
it to conclude in eleven out of the thirteen cases that the interference
had been disproportionate and that there had accordingly been a breach
of Article 10. In one case, on the other hand, the expressions used were
found by the Court to amount to an appeal for bloody revenge by stirring
up base emotions and hardening already embedded prejudices which have
manifested themselves in deadly violence . The Court found that this was
"hate speech" and the "glorification of violence",
and the interference complained of, in this instance accompanied by a
fairly modest fine, was proportionate to the legitimate aim pursued.
There will clearly always be some
tension between the need to take measures to prevent violence, and particularly
terrorism, on the one hand, and certain fundamental rights, notably the
freedom of expression, on the other. In the field of Article 10 the Court
will examine the reality of the threat and the nature and severity of
the sanction. The Convention will pull in the direction of democracy and
free political speech as an essential component of democracy, but violence
being by definition anti-democratic will in principle never attract its
protection. Where the reality of the link between speech and violence
is established, the speech in question should not do so either .
The right to offend, shock or disturb
in the case-law of the European Court of Human Rights is a function of
democratic society. Contribution to public debate on matters of public
concern, even if couched in excessive terms will attract protection and
this may also be so where criticism or insulting or defamatory language
is directed at private individuals. The competing interest of the right
to protection of reputation has so far carried little weight in the balancing
process. I believe we must be careful not to take this development too
far. With the enormous power and immediacy of the modern media, the potentially
devastating effect of public statements reinforces the duties and responsibilities
of those making them. While the Court has rightly stressed the potentially
chilling effect of placing restrictions on speech that may be offensive
to individuals or sectors of the community, genuine debate may also be
stifled by over-aggressive and inadequately researched journalism. It
also seems to me that the nature of the media has changed since 1986 the
Court decided the Lingens case. In the harsh competitive world of the
modern media, the emphasis has inevitably shifted from the aim of imparting
ideas that further the democratic process to the commercial reality of
the need to sell newspapers, advertising space and so on. This truism
may perhaps influence the way the judicial balancing of freedom of expression
against the different interests which compete with it, and notably the
right to reputation, is carried out.
I turn now to Article 11, which guarantees the freedom of peaceful assembly
and association. As I indicated at the beginning of this paper, the link
between this provision and the freedom of expression is a strong one.
Thus Article 11 has to be considered in the light of Article 10. The protection
of opinions and the freedom to express them is one of the objectives of
the freedoms of assembly and association as enshrined in Article 11 .
The same considerations accordingly apply as to the central role of freedom
of expression in democratic society. Again freedom of assembly under Article
11 protects a demonstration that may annoy or give offence to persons
opposed to the ideas or claims that it is seeking to protect . The Court
has declared that "freedom of thought and opinion and freedom of
expression as guaranteed by Articles 9 and 10 of the Convention respectively,
would ... be of very limited scope if they were not accompanied by a guarantee
of being able to share one's beliefs or ideas in community with others
particularly through associations of individuals having the same beliefs,
ideas or interests" . The term "association" moreover has
an autonomous Convention meaning; the national law classification will
not be decisive in determining whether Article 11 applies . Article 11
expressly covers the right to form and join trade unions. It also protects
a negative right, the right not to be compelled to join an association
or a trade union .
But again the essence of the right
is be found in active participation in democratic life and the democratic
process. One of the principal characteristics of democracy, the Court
has held, is the possibility it offers of resolving a country's problems
through dialogue, without recourse to violence, even when those problems
are irksome. Democracy thrives on freedom of expression in all its forms.
From that point of view, there can be no justification for hindering a
group solely because it seeks to debate in public the situation of part
of the State's population and to find, according to democratic rules,
solutions capable of satisfying everyone concerned . Restrictions imposed
on the formation or activities of associations seeking to take part in
democratic debate will be difficult to justify under paragraph 2 of Article
11, which sets out an exhaustive list of legitimate aims in respect of
which restrictions may be applied provided that they are necessary in
a democratic society to attain those aims. Those exceptions must be strictly
construed; only convincing and compelling reasons can justify restrictions
on freedom of association . The way in which national legislation enshrines
this freedom and its practical application by the authorities reveal the
state of democracy in the country concerned .
In the light of the above, it can
be readily understood that the dissolution of a political party, and therefore
the extinction of an essential actor in the democratic process, will be
difficult to justify in the context of Article 11. There have been a series
of Turkish cases concerning just that issue and they have again given
the Court the opportunity to stress the primordial place of democracy
in the Convention scheme. In United Communist Party of Turkey and Others
v. Turkey, the Turkish Constitutional Court had dissolved a political
party. The Strasbourg Court established firstly that the freedom of association
applied also to political parties as "a form of association essential
to the proper functioning of democracy" and that that freedom extended
not only to the founding of the association, but also to its right to
engage in activities once formed. The Court resisted an argument by the
Government to the effect that a political party regarded by the national
authorities as undermining the constitutional structures of the State
could never attract the protection of the Convention. Restrictions imposed
on such parties had to be compatible with the State's Convention obligations
whether the origin of the restrictions was constitutional or legislative.
The Court underlined that the choice
of the name of a political party could not in principle justify a measure
as drastic as dissolution in the absence of other relevant and sufficient
reasons. The importance of democracy in the Convention system is highlighted.
Democracy appears to be, says the Court, the only political model contemplated
by the Convention and accordingly the only one compatible with it. Thus
the right to form and carry on an association designed to promote political
aims and ideas is an area in which the Contracting States enjoy only a
limited margin of appreciation. The test under the Convention in assessing
the compatibility of restrictions with the Convention standards imposed
on the various freedoms is one of necessity in a democratic society and
that will be more difficult to satisfy where what is at stake is the right
to participate effectively in the democratic process.
In this case the party had been
dissolved before it had been able to start its activities, only ten days
after it was formed. In these circumstances it is perhaps not surprising
that the Court was not persuaded that the immediate and permanent dissolution
of the United Communist Party had been necessary in a democratic society.
It found on the contrary that this measure, ordered before its activities
had even been started and coupled with a ban barring its leaders from
discharging any other political responsibility, was disproportionate to
the legitimate aim pursued. The fact that the party's programme referred
to the Kurdish problem was not sufficient justification, particularly
as it had not in any way advocated violence .
In the case of Sidiropoulos and
Others v. Greece, the national courts had refused to register the applicants'
association. The European Court regarded the proposed association's aims,
namely to preserve and develop the traditions and folk culture of the
Florina region, as "clear and legitimate" on their face. It
could not and did not rule out that once founded a political party or
association might under cover of the aims mentioned in its memorandum
of association have engaged in activities incompatible with those aims.
But that possibility had to be tested against facts, and, as with the
Turkish Communist party, the association had not had any time to take
action which might have proved or disproved the Government's allegations.
The refusal to register the association was therefore disproportionate.
In a Bulgarian case concerning
the freedom of assembly, the applicants complained of a ban on meetings
organised by them to commemorate certain historical events. The Strasbourg
Court did not find evidence that those involved in the organisation of
the prohibited meetings had had violent intentions. At the same time it
recognised that the inhabitants of a region in a country were entitled
to form associations to promote the region's special characteristics.
The fact that an association asserted a minority consciousness could not
in itself justify interference with its rights under Article 11. An essential
factor was whether there had been a call for violence. The Court noted
that in the case before it there was no real foreseeable risk of incitement
to violence or any form of rejection of democratic principles. In those
circumstances the measures banning the applicants from holding commemorative
meetings had not been necessary in a democratic society and were therefore
in breach of Article 11.
Once again the protection and strengthening
of democracy and the democratic process is central to the Court's approach.
As it stated: "Freedom of assembly and the right to express one's
views through it are among the paramount values in a democratic society.
The essence of democracy is its capacity to resolve problems through open
debate. Sweeping measures of a preventive nature to suppress freedom of
assembly and expression other than in cases of incitement to violence
or rejection of democratic principles - however shocking and unacceptable
certain views or words used may appear to the authorities, and however
illegitimate the demands made may be - do a disservice to democracy and
often even endanger it". The Court continued: "In a democratic
society based on the rule of law political ideas which challenge the existing
order and whose realisation is advocated by peaceful means must be afforded
a proper opportunity of expression through the exercise of the right of
assembly as well as by other lawful means" .
In a Polish case , on the other
hand, a Chamber of the Court found, in a judgment which is not final at
the time of writing , that the refusal to register an association, which
was to be called the "Union of People of Silesian Nationality",
was proportionate to the legitimate aim pursued, namely the prevention
of disorder and the protection of the rights of others. The Court took
note of the fact that the applicants could have dispelled the authorities'
doubts by slightly changing the name of their association and by sacrificing
or amending a single provision of the memorandum of association, alterations
which in the Court's view would not have prevented the association's members
from achieving the objectives they has set for themselves. It pointed
out that democracy and pluralism are, in the nature of things, based on
a compromise that requires concessions by individuals and groups of individuals.
Most conclusively perhaps, the Court accepted that the association had
attempted to circumvent certain provisions of the electoral law, notably
those laying down conditions for exemption from the threshold of votes
required to participate in the distribution of seats in Parliament. It
was reasonable on the part of the authorities to act in order to protect
the electoral system which is an indispensable element of the proper functioning
of a "democratic society" within the meaning of Article 11.
Once again the emphasis is on the democracy. Here, unlike the other cases
involving refusal to register, the Chamber was satisfied that there were
sufficient indications that the association had motives other than those
set out in its proposed memorandum of association and that these were
capable of affecting the proper functioning of the electoral process.
It remains to be seen whether the Grand Chamber will take the same view.
I cannot leave Article 11 without
referring to one more case concerning the dissolution of a political party
in Turkey. In Refah Partisi and Others v. Turkey a Chamber of the Court
concluded that the grounds cited by the Turkish Constitutional Court to
justify Refah's dissolution were relevant and sufficient and that the
interference complained of was necessary in a democratic society. Refah
had, so the Chamber found, declared their intention of setting up a plurality
of legal systems and introducing Islamic law and had adopted an ambiguous
stance with regard to the use of force to gain power and retain it. The
case has now been referred to the Court's Grand Chamber of 17 Judges,
and so will be reheard. I can say nothing that would prejudge that rehearing,
but we can still look at the general principles enounced. These were that
democracy and the rule of law have a key role to play in the integrated
system for the protection of human beings set up under the Convention.
Only institutions created by and for the people may be vested with the
powers and authority of the State; written law must be interpreted and
applied by an independent judicial power. There can be no democracy where
the people of a State, even by a majority decision, waive their legislative
and judicial powers in favour of an entity which is not responsible to
the people it governs, whether it is secular or religious. There is a
very close link between the rule of law and democracy. As it is a function
of written law to establish distinctions on the basis of relevant differences,
the rule of law cannot be sustained over a long period of time if persons
governed by the same laws do not have the last word on the subject of
their content and implementation. I would add, as I suggested earlier,
nor can democracy be sustained over a long period of time without the
effective operation of the rule of law.
The competent Chamber accepted
that a political party might campaign for a change in the law or the legal
and constitutional basis of the State on two conditions: first that the
means used to that end must in every respect be legal and democratic and,
second, that the change proposed must itself be compatible with fundamental
democratic principles. It followed that a party whose leaders incited
recourse to violence or proposed a policy that did not comply with one
or more of the rules of democracy or was
aimed at the destruction of democracy and infringement of the rights and
freedoms granted under democracy could not lay claim to the protection
of the Convention. Again we must await the Grand Chamber's judgment to
see whether this approach is confirmed.
Whatever the outcome in the different
cases pending before the Court's Grand Chamber, it seems to me clear that
the Convention in general, and the freedoms of expression and association
in particular, can only be understood when seen in the context of a fully
democratic society. Human rights as we understand them in Strasbourg have
no existence outside democracy. Human rights law must therefore not only
reinforce the effective operation of democracy, it must also preserve
democracy from attack, whether the threat comes from government or other
sources. Articles 10 and 11 of the Convention enshrine rights that are
fundamental to the daily functioning of democracy and democratic society.
Their exercise as part of ordinary democratic life therefore attracts
a high level of protection, but they cannot be invoked to undermine democracy,
notably in connection with the use of violence.
Резюме
В число фундаментальных
прав и свобод, необходимых для обеспечения демократии (право физической
неприкосновенности и защиты чести человека, гарантия защиты семейной и
личной жизни и т.д.) входят также права и свободы, которые делают возможным
нормальное и активное участие в создании демократического общества.
Среди них важное
место занимают свобода выражения мнения (ст.10) и свобода объединения
(ст.11). Эти две статьи взаимосвязаны. По определению Европейского суда,
защита личного мнения, гарантируемая статьей 10, является одной из составляющих
свободы объединения и собрания, гарантируемой статьей 11. Более того,
эти две статьи более или менее идентичны.
Право выражения политических
идей и право участия в политической деятельности являются фундаментальными
для демократического общества.
По делу Хандисайда
Европейский суд по правам человека заметил, что это право применимо не
только к той “информации” и к тем “идеям”, которые считаются безвредными,
а также к тем, которые оскорбляют, шокируют или беспокоят государство
и общество.
Свобода прессы занимает
важное место в практике Европейского суда. Суд придает важное значение
прессе в демократическом обществе, так как ее задачей является дача информации
и идей в интересах общества. Общество имеет право на информацию. Суд подчеркивает
важную функцию прессы как “защитника общества”.
В одном из своих
решений Европейский суд подчеркнул, что политики подвергаются критике
больше, чем обычные люди. Политик должен осознавать, что он неизбежно
подвергнется критике за любое свое слово или действие.
По другому делу,
где критике подверглась жена известного политика, которая сама была государственной
служащей, было принято решение, что личная жизнь не всякого человека,
который находится в центре внимания общества, может быть предметом обсуждения
публики.
Суд проявил совсем
другой подход к публичной критике судей. Так, в своем решении Суд подчеркнул,
что деятельность судебной системы является объектом общественного интереса
и что судебная власть должна пользоваться доверием общества, поэтому это
доверие необходимо защитить от безосновательной, с точки зрения фактов,
критики.
Защита мнения и свобода
выражения этих мнений является одной из составляющих свободы объединений
и собраний.
Термин “объединение”
имеет свое, автономное толкование по Конвенции. Статья 11 применяется
также к праву создания и присоединения к торговым союзам. Она также гарантирует
негативное право, то есть нельзя принуждать человека к присоединению к
ассоциации или торговому союзу.
Но суть права состоит
в активном принятии участия в демократической жизни и демократических
процессах. Одной из характерных черт демократии, по определению Суда,
является возможность решать проблемы государства с помощью диалогов, не
прибегая к насилию.
По делу Объединенной
коммунистической партии Турции против Турции, в котором Конституционный
Суд Турции запретил деятельность политической партии, Суд постановил,
что свобода объединения относится также к политическим партиям как к форме
объединения, которая является существенным условием для надлежащего функционирования
демократии, и что эта свобода относится также к праву членствования в
политических партиях.
По другому делу Суд
постановил: ”Свобода объединения и, с ее помощью, право выражения мнения
является высшей ценностью в демократическом обществе. Суть демократии
состоит в возможности решения проблем с помощью дебатов. В демократическом
обществе, основанном на законности, должно быть дозволено выражение политических
идей, которые осуждают существующие порядки и реализация которых осуществляется
мирными путями, и должны быть представлены соответствующие возможности
выражения этих мнений с помощью как гарантированного права на объединение,
так и других законных способов”.
Права человека, как
они понимаются в Страсбурге, не существуют вне рамок демократии. Статьи
10 и 11 Конвенции содержат фундаментальные права, которые необходимы для
повседневного функционирования демократии и демократического общества.
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