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European Convention on Human Rights and Militant Democracy

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Title: European Convention on Human Rights and Militant Democracy


1
European Convention on Human Rights and Militant
Democracy
  • Rory OConnell
  • Bilzen July 13th

2
Introduction
  • Rory OConnell
  • Human Rights Centre at the School of Law, Queens
    University of Belfast, Northern Ireland
  • www.law.qub.ac.uk/humanrights
  • Activities include Masters programmes in Human
    Rights, Criminal Justice and Criminology,
    Governance
  • http//www.qub.ac.uk/schools/SchoolofLaw/Prospecti
    veStudents/PostgraduateTaughtDegrees/
  • Rory teaches Constitutional Law, Human Rights,
    and Equality law . He is a Former Assistant
    Director of the Human Rights Centre and former
    Director of the Postgraduate Programme in Human
    Rights
  • http//www.qub.ac.uk/schools/SchoolofLaw/Staff/DrR
    oryOConnell/

3
Outline
  • 1948 Universal Declaration of Human Rights
  • Council of Europe and the 1950 European
    Convention on Human Rights, European Court of
    Human Rights
  • ECtHR and democracy
  • Historical case law
  • 1990s-2009
  • Human Rights Principles

4
1948 Universal Declaration of Human Rights
www.ohchr.org
  • Whereas disregard and contempt for human rights
    have resulted in barbarous acts which have
    outraged the conscience of mankind
  • Range of civil, political, social, economic and
    cultural rights
  • Non-discrimination
  • Article 11(2) retrospective crimes
  • Article 14 (2) no asylum for acts contrary to UN
    principles
  • Article 26 (2) education, tolerance, UN
    activities for peace

5
UDHR contd.
  • Article 29(3)
  • These rights and freedoms may in no case be
    exercised contrary to the purposes and principles
    of the United Nations
  • Article 30
  • Nothing in this Declaration may be interpreted as
    implying for any State, group or person any right
    to engage in any activity or to perform any act
    aimed at the destruction of any of the rights and
    freedoms set forth herein.

6
Council of Europe and the European Convention on
Human Rights 1950
  • www.coe.int
  • Council of Europe 47 states, 800 million people
  • NOT the European Union
  • Many human rights treaties
  • European Convention on Human Rights 1950 and its
    subsequent protocols
  • European Court of Human Rights in Strasbourg
    (ECtHR)
  • Protects mainly civil and political rights
  • A floor, not a ceiling

7
European Court of Human Rights
  • www.echr.coe.int
  • Advisory opinions possibilities of individual
    complaint and inter-state complaint
  • ECHR Bodies Court, (formerly a Commission) and
    Committee
  • Complemented by other European and International
    mechanisms
  • The oldest and most developed HR court
    Influences EU law
  • Victim of its own success

8
ECHR 1950 and democracy
  • Inspired by 1948 UDHR
  • Europeans know their enemy
  • Drafted with an eye on the past
  • Drafted also with an eye to the east.

9
ECHR 1950 and democracy
  • Preamble
  • Frequent references to law e.g. Article 2,
    Articles 8-12, etc.
  • Democratic society Articles 8 11
  • Free elections Article 3 of Protocol 1
  • Various democratic rights expression (10),
    association and assembly (11), vote and run for
    election (art 3 P1)

10
Article 17
  • Nothing in this Convention may be interpreted as
    implying for any State, group or person any right
    to engage in any activity or perform any act
    aimed at the destruction of any of the rights and
    freedoms set forth herein or at their limitation
    to a greater extent than is provided for in the
    Convention.

11
Historical Case law
  • Readily accepted limitations imposed on fascists
    and racists sometimes invoking Article 17.
  • Accepted German party ban imposed on the
    Communist Party
  • Accepted German loyalty law
  • Dismissed as inadmissible complaints about
    censorship of political parties associated with
    Northern Irish violence (Purcell v Ireland, Brind
    v UK)

12
1990-2009
  • Contextual changes
  • Fall of the Iron Curtain Communists no longer
    seen as a major threat
  • Expansion to the East questions of transitional
    justice
  • Turkey accepts individual petition
  • 11 September 2001
  • Far right and racist parties (UK just elected
    first BNP MEPS)

13
Human rights principles
  • Article 17 rarely used except for egregious cases
  • The rights of expression, association, assembly,
    vote and stand for election are subject to
    limitations. Limitations must satisfy three
    principles
  • Legality (or lawfulness)
  • Legitimate aim
  • Necessity (proportionality)
  • Margin of appreciation (NB international law
    doctrine)?

14
Legitimate Aims
15
Political violence
  • Irish and UK cases on political censorship
  • Batasuna case

16
Far right and racists
  • Article 17 still has a role to play
  • But ECtHR also tries to ensure legitimate
    restrictions are not excessive

17
Constitutional Principles
  • Refah Paritisi (Welfare Party) case
  • Controversial decision in the Chamber and perhaps
    even more so the Grand Chamber
  • Personal laws, Sharia, violence

18
Territorial integrity
19
Transition to democratic rule
  • Rekvenyi v Hungary neutrality of police force
  • Lustration cases
  • Zdanoka v Latvia restrictions on former
    communists

20
Illegitimate aims
  • Illegitimate aims exclusion of all separatist
    agendas, prejudice, etc.

21
Lawfulness
22
Lawfulness
  • Generally this is not an issue
  • But would be an issue if the law was unclear or
    did not include sufficient safeguards

23
Necessary in a democratic society
  • Proportionality

24
Necessity
  • Not necessary to ban ex-Communists from private
    sector employment Sidabras, Rainys, Zickus v
    Lithuania
  • Not necessary to ban (or refuse to register)
    parties that call themselves Communist or
    revolutionary (Tsonev v Bulgaria)

25
Necessity
  • Not necessary to ban parties that advocate
    minority rights, territorial autonomy or even
    independence (provided the means and ends are
    democratic) United Macedonian Organisation
    Ilinden and Ivanov v Bulgaria Application no.
    44079/98
  • No pressing social need to decline registration
    of a party which seeks to end impunity of
    previous office holders (Linkov v Czech
    Republic).

26
Necessity
  • It is legitimate to change the constitution
    provided the change is compatible with democracy/
    human rights and the means used are democratic
    (Tsonev v Bulgaria Partidul Comunistilor v
    Romania)
  • May be necessary to restrict the political rights
    of communist party leaders associated with an
    anti-democratic coup (Zdanoka v Latvia) , but not
    ex-KGB border guards who have spent ten years
    contributing to society (Adamsons v Latvia).

27
Necessity
  • May be necessary to censor political parties
    associated with violence (Purcell v Ireland,
    Brind v UK), but there must be serious threats.
  • May be necessary to ban parties which refuse to
    condemn violence and which appear aligned to
    violent movements (Batasuna)

28
Necessity
  • May be necessary to ban parties which are
    popular, likely to win an election outright and
    may introduce sweeping changes to the
    constitution undermining human rights principles
    (Welfare Party v Turkey).
  • It is not necessary to remove sitting members of
    parliament from their seats except in extreme
    cases (Sadak, Sobaci, Kavakci v Turkey).

29
Problems and Issues
  • Evidence of intention contrast the long list of
    evidence in the Batasuna case with the few
    examples in Welfare Party. Silence may indicate
    a position.
  • Must not wait till too late nor act too early
  • Procedural requirements. Bobek v Poland. Article
    6 clearly relevant but is there also a
    requirement that party bans be the done by
    courts????

30
Problems and Issues
  • Least restrictive means does this call for
    graduated penalties? ECtHR hints at this in
    Turkish cases
  • Time limits
  • Democratic engagement
  • Democratic legitimacy?
  • A Duty to intervene??? Positive obligation

31
Queens University of Belfast Human Rights
Centrewww.law.qub.ac.uk/humanrights
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