Rainey: Human Rights Law Concentrate 3e
Tom is a member of a group dedicated to the reintroduction of the criminalisation of homosexuality within the UK. As part of its campaign, Tom distributes leaflets describing how ‘gays are a threat to society spreading disease and immorality and should be eliminated’. Along with the leaflet is a website address that contains lists of known ‘gay’ clubs and a link to a site on bomb making. The leaflet asks that concerned citizens should go to the links to find ways to ‘deal’ with the ‘scourge’ if the politicians don’t listen. Tom is arrested by the police, is charged, and found guilty under incitement to hatred legislation. Unknown to Tom, the group he was a member of had been under surveillance by police for some time. The power that allowed the police to intercept communications data gave the police power to do so ‘where there was a threat to the public good’.
Whilst in prison in October 2014, Tom is subjected to a severe beating by other prisoners, which included being made to perform lewd acts. He wishes to see a lawyer to consult on a possible negligence case against the prison as he was left alone without guards despite having been threatened by the prisoners who attacked him earlier that week. Tom’s letter to a solicitor is intercepted and he is not given permission to see a solicitor.
In November 2014 Tom is refused leave to appeal his conviction. Tom applies to the European Court of Human Rights in January 2015.
Tom may be able to argue several violations of his rights under the ECHR. His case is admissible as he is a victim and he has exhausted domestic remedies, applying to the European Court of Human Rights (ECtHR) within 6 months after the last domestic remedy. It is unlikely to be ill founded or incompatible with the convention, and there has been a significant disadvantage.
Tom could argue his right not to be ill treated under article 3 has been violated. Article 3 states:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment
Although the state has not directly ill treated Tom, as the state is allowed to punish a criminal offence, the state may have a positive obligation to protect Tom from violence from other prisoners whilst he is in custody (Edwards v UK). The European Court of Human Rights has used article 1 of the ECHR to expand protection where the state knows or ought to know there is a real and immediate risk of ill treatment and can take reasonable steps to prevent this (Osman v UK). Here, he was left without guards after past threats so the prison should have known there was a real and immediate risk and it would have been reasonable to prevent it.
Article 8 is the right to family and private life. It is a qualified right so the state can justify interference. It states:
1) Everyone has the right to respect for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Tom has been under surveillance. The European Court of Human Rights has held this is an interference with correspondence under article 8(1) and would also be an interference with his private life. The state would have to justify this. The surveillance is probably disproportionate even though the state has a wide margin of appreciation when national security or crime is involved (Laskey v UK).
Tom could also claim a violation of article 8 due to his letter being intercepted. Again, the state would have to justify this and it may be difficult as the letter is sent in order to get legal help which surely is an important right when weighed against the aim of the state to maintain order (Golder v UK).
Tom could argue that the lack of access to a solicitor violated his right to a fair trial under article 6(3):
“to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”
His inability to get a lawyer meant that he could not get legal assistance (Golder v UK).
Tom could argue that his arrest and conviction violates his right to expression under article 10. Freedom of expression is one of the fundamental rights in the ECHR, so only on rare occasions should the state be allowed to limit this under article 10(2), even where expression shocks and disturbs (Handyside v UK).
The state could try and justify the interference by arguing that it would cause harm so the criminal offence is needed to protect against crime or disorder. However, it may not be proportionate, even with a wide margin of appreciation though the state could claim that incitement to hatred could cause harm (Surek v Turkey, Garaudy v France).
The answer identifies the appropriate articles to be argued and answers most of the question correctly. There is a good attempt to clearly structure the answer. It could be improved and there are errors and issues with exam technique:
- Copying out the articles: Assuming the exam allows a statute book into the exam, this is a waste of time and the student will get no marks for being able to copy out an article. Paraphrase important parts in your own words.
- Introduction: It might help to say clearly at the beginning what rights will be argued.
- Admissibility: There is a limited discussion. The answer should refer to article 34 for victim status and say what this means as well as applying it to the facts. The other criteria can be found in article 35 (the answer only mentions a couple of these). Briefly explain these and apply to the facts – dates etc. for time limits. The answer should note new criteria under article 35 added by P14.
- Article 3: gets the main point with regard to positive obligations but when the right is engaged in this way, the answer should then apply article 3. Do the beating and the acts that he is made to perform meet the threshold for suffering so that the treatment is at least degrading? Applying factors listed in Ireland v UK, it could be argued that the treatment meets the threshold and possibly is torture given the lewd acts ( Ireland v UK, Selmouni v France).
- Article 8: There is a limited discussion. The answer has identified the right areas with regard to surveillance and the letter but more is needed here. The answer is inaccurate as the reason for the state being unable to justify the surveillance would most likely be that it is not in accordance with law (Malone v UK, Copland v UK for example) – applying to facts, note the width of the power and discretion it gives to the state. Letter – do not use ‘surely is’. An answer should avoid this type of language.
- Article 6: the answer is inaccurate here. The part of article 6 that is copied out is not applicable as this applies to a criminal charge and Tom wishes to sue for personal injury, which is a civil claim. Tom can sue the prison as Article 6 covers civil obligations but he would have to argue that it engages the implicit right of access to a court as established in Golder v UK.
- Article 10: This is limited and the student may have run out of time by now. It may have been better to do article 10 first, as then the answer could have discussed in more detail the nature of the expression. Is it hate speech? If so it would not be admissible under article 17 (Garaudy v France). If it is incitement to hatred (language used, links to bombsite taking it beyond just causing offence), then it will be allowed under article 10(1). The state would have to justify limitations under article 10(2). Here, Tom might have difficulties. It is likely the state would be given a wide margin of appreciation (Handyside v UK, Vejdeland v Sweden), given the nature of the expression and the fact that it is easily accessible to many. The state’s actions may be proportionate.
- Conclusion: The answer should come to some conclusion, outlining which rights are most likely to be successful if argued before the European Court of Human Rights.
- Overall, the answer identifies the rights and does apply the principles to the facts in some areas but makes mistakes and is inaccurate in others.
Article 9 | Right to freedom of thought, conscience and religion
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Article 9 of the Convention provides as follows:
(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10 of the EU Charter corresponds to Art.9 ECHR and is subject to the limitations set out in 9(2). This means, in effect, that where Member States are adopting Directives prohibiting discrimination or implementing EU working time rules, they are bound to respect the religious beliefs and activities of their citizens. This also authorises the slaughter of animals without pre stunning to satisfy the demands of Halaal consumers despite the provisions of Directive 93/104/EC on the protection of animals at the time of slaughter. The right to freedom of religion is also associated with the particularly highly protected EU right for individual to move across borders to join religious groups, preach etc.
Art.9 covers the sphere of private, personal beliefs and religious creeds. The Strasbourg authorities emphasise the democratic importance of an open forum of beliefs and opinions; atheists and agnostics may therefore claim the protection of this right (Kokkinakis v Greece (1993)17 EHRR 397).
The Strasbourg Court has accepted the following views and positions as beliefs under Art.9 :
(1) Veganism: United Kingdom Application No.00018187/91 (1993) Unreported.
(2) Scientology: Sweden Application No.0007805/77 (1979) 16 DR 68.
(3) Kosher diet: United Kingdom Application No.0008231/78 65 DR 245.
(4) Jehovah’s Witness: Kokkinakis v Greece (1993).
The right to freedom of conscience was argued in the right to die cases R v DPP ex parte Pretty and Pretty v UK following Sanles v. Spain  EHRLR 348. The argument in both cases was that one’s own freedom to choose the manner and timing of one’s death should not be restricted by legislation fuelled by religious sensitivities. The argument was rejected in Strasbourg: see Pretty (2) for a critique of this element of the judgment. In general, positions taken in relation to politics and ideology do not qualify for Article 9 protection. There is no right, for example, under Article 9 to conscientious objection: Application No.0007705/76 (1977) 9 DR 196. Art.9 only protects actions and gestures that are intimately connected with a creed or belief. In Arrowsmith v United Kingdom (1978) 19 DR 5 the Commission rejected a complaint that the prosecution of the applicant for handing out leaflets to soldiers urging them not to serve in Northern Ireland breached her rights under Article 9. This was a specific action and not a general expression of her pacifist ideals. However the explicit exclusion of non-theistic belief systems by the Court may have to be reviewed in the light of the current inflamed debate about the impact of religion on various freedoms, such as the freedom to marry according to one’s choice, and of course the general freedom of expression.
There is some scepticism about an express right to respect for religion in a largely secular society and recent cases upholding the right to religious practices have attracted strong criticism. When the High Court ruled in May 2011 that a Muslim prisoner could not be disciplined for refusing to give urine for a drugs test because he was in the midst of a voluntary fast the general view was that the courts were once again cravenly giving way to abusive reliance on human rights by unsavoury characters: see the comments on our report of the case.
Furthermore, the idea that freedom of speech must give way to religious sensitivities under the increasing cloud of offence is becoming a highly contentious issue, made more so by the tensions surrounding Islamic extremism and the murderous attacks in Europe of those deemed offensive to the religion.
Article 9 does not impose a positive obligation on the State to introduce legislation to criminalise blasphemy or, where blasphemy laws are present, there is no duty on public authorities to bring proceedings against publishers of works that offend the sensitivities of any individual or group: Choudhury v United Kingdom Application No.00017439/90 (1991). States which impose conscription will not therefore be in breach of Article 9 if they sanction such objections.
Churches and associations with religious and philosophical objects are capable of exercising Article 9 rights. Profit-making corporations on the other hand cannot rely on Article 9 rights. In Refah Partisi v Turkey (2003)the Court held that the dissolution of a political party that was held to desire to establish a theocracy was consistent with the ECHR on the grounds that theocracy flew in the face of the liberal and democratic principles of the Convention.
Article 9 does not require active facilitation of religious beliefs in the workplace (Stedman v United Kingdom (1997) 23 EHRR CD 168, although the Strasbourg Court has adopted a more generous approach in Eweida and Others v United Kingdom (2013) by concluding that the applicant’s employer had breached her Article 9 rights by refusing to allow her to wear a crucifix. This was a minor victory however since the Court also decided that a policy requiring employees to serve all customers irrespective of sexual orientation was a legitimate restriction on religious freedom (this part of the case involved a Christian registrar disciplined for refusing to register same-sex couples and a second involving a marriage therapist dismissed for refusing to counsel same-sex couples). The Strasbourg Court is generally unsympathetic to individual claims for exemption on religious grounds to generally applicable laws; thus, in Pichon and Sajous v France (an inadmissibility ruling of 2001), the conviction of pharmacists who refused on religious grounds to supply contraceptives that had been lawfully prescribed was upheld on the basis of the need to take account of both health policy and the rights and freedoms of others. In Dahlab v Switzerland (2001) the Court upheld the refusal by the authorities to allow a teacher to wear a headscarf, on the basis that the state was entitled to seek to ensure the neutrality of the education system. Beyond the private sphere, therefore, states have a broad margin of discretion in deciding what religious actions and symbols to restrict.
Section 13 Human Rights Act 1998 provides that if a court’s determination of any question might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion under Art.9 , the court must have particular regard to the importance of that right. See Alison Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375 for judicial discussion of the practical effect of this section. However see comments by Laws LJ on the proposal to accord special treatment in the courts to claimants or defendants relying on supernatural backing for their behaviour: McFarlane v Relate Avon Ltd  EWCA Civ B1 (29 April 2010)
The freedom of religion also includes a negative aspect, including the rigth not having to manifest one’s religion or beliefs. In the case of Sinan Isik v. Turkey the Strasbourg Court ruled that it was an interference with Art.9 to require a citizen to indicate his religion in his application for an ID card or formally ask for the religion box to be left empty. That in itself, in the Court’s view, violated the Convention. This presumably covers all forms of state-sanctioned identification documents or registers.
The Human Rights Act 1998 also provides that priests, ministers and officials of any church are excluded from liability under s.6 where they refuse to administer a marriage “contrary to [their] religious doctrines or convictions”.