Case BriefsInternational Courts

European Court of Human Rights: The Seven-Judge Bench comprising of Yonko Grozev (President), Angelika Nußberger, André Potocki, Síofra O’Leary, M?rti?š Mits, Gabriele Kucsko-Stadlmayer, and Lado Chanturia held that there was no violation of Article 10 and 6 of European Convention on Human Rights as claimed by the complainant in the facts of the case presented before them.  

On 28-01-2010, the day after Holocaust Remembrance Day, Mr Pastörs, then a member of the Land Parliament of Mecklenburg-Western Pomerania, made a speech stating that “the so-called Holocaust is being used for political and commercial purposes”. In August 2012 he was convicted by a district court for violating the memory of the dead and for intentional defamation of the Jewish people. In March 2013 the regional court dismissed his appeal against the conviction as ill-founded. After reviewing the speech in full, the court found that Mr Pastörs had used terms which amounted to “denying the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich”. The court stated he could not rely on his free speech rights in respect to Holocaust denial. He lodged an application with the European Court of Human Rights on 3-07-2014 relying on Article 10 (freedom of expression) and Article 6 § 1 (right to a fair trial). He alleged that the proceedings against him were unfair because one of the judges on the Court of Appeal panel was married to the judge who had convicted him at first instance and could therefore not be impartial.

Freedom of Expression:

The ECHR examined his complaint under both Article 10 and Article 17 (prohibition of abuse of rights). It reiterated that Article 17 was only applicable on an exceptional basis and was to be resorted to in cases concerning freedom of speech if it was clear that the statements in question had aimed to use that provision’s protection for ends that were clearly contrary to the Convention. The ECHR noted that the domestic courts had looked at the speech in full and had found that the applicant had planned his speech in advance, deliberately choosing his words and resorting to obfuscation to get his message across, which was a qualified Holocaust denial showing disdain to its victims. ECHR held that Mr Pastörs had intentionally stated untruths in order to defame the Jews and the persecution that they had suffered. The interference with his rights also had to be examined in the context of the special moral responsibility of States which had experienced Nazi horrors to distance themselves from the mass atrocities. His conviction was therefore proportionate to his actions. They found that there was no violation of Article 10 and rejected the complaint as manifestly ill-founded.

Right to a fair trial:

The ECHR held that the involvement in the case of two judges who were married, even at levels of jurisdiction which were not consecutive, might have raised doubts about one of the judge’s lacking impartiality. It was also difficult to understand how the applicant’s complaint of bias could have been deemed as inadmissible in the Court of Appeal’s first review. However, the issue had been remedied by the review of Mr Pastörs’ second bias complaint, which had been aimed at all the members of the initial Court of Appeal panel and had been dealt with by three judges who had not had any previous involvement in the case. Nor had the applicant made any concrete arguments as to why a professional judge married to another professional judge should be biased when deciding on the same case at a different level of jurisdiction. There were thus no objectively justified doubts about the Court of Appeal’s impartiality and there had been no violation of Article 6.

Judges Grozev and Mits expressed a joint dissenting opinion. [Pastörs v. Germany, Application No. 55225 of 14, decided on 03-10-2019]

Case BriefsInternational Courts

European Court of Human Rights: In the matter dealing with validity of the ban on the wearing in public of clothing that partly or totally covers the face under the Belgian law of 1 June 201, the Court held that the ban does not violate the right to respect for private and family life; freedom of thought, conscience and religion given under Articles 8 and 9 of the European Convention on Human Rights, nor does it violate Article 14 that provides for prohibition of discrimination.

Freedom of thought, conscience and religion

The Court said that ban was valid as it sought to guarantee the conditions of “living together. It was explained that under Article 9 of the Convention the State had a broad margin of appreciation to decide whether and to what extent a restriction on the right to manifest one religion or convictions was “necessary”. In adopting the provisions in question, the Belgian State had sought to respond to a practice that it considered to be incompatible, in Belgian society, with social communication and more generally the establishment of human relations, which were indispensable for life in society. The Court also took note of the fact that the decision-making process leading to the ban in question had taken several years and had been marked by comprehensive debate in the lower house of Parliament and by a detailed examination of the various interests by the Constitutional Council.

Proportionality of the restriction

Considering the sanction for non-compliance with the ban under Belgian law that ranges from a fine to a prison sentence, the Court said that the main sanction is the fine, being the lightest penalty and that imprisonment is reserved for repeat offenders and was not applied automatically. Hence, the ban, even though it was controversial and undeniably carried risks in terms of the promotion of tolerance in society, could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.

Prohibition of Discrimination

Explaining that as per Article 14, a policy or measure can be regarded discriminatory is that policy or measure lacked “objective and reasonable” justification, if it did not pursue a “legitimate aim” or if there was no “reasonable relationship of proportionality” between the means used and the aim pursued, the Court said that the law in question had an objective and reasonable justification for the same reasons.

The Court was hearing the plea of 2 Muslim women who contended that they had decided on their own initiative to wear the niqab, a veil covering the face except for the eyes, on account of their religious convictions. One of the women contended that the ban forced her to remove her veil temporarily, being afraid that she might be stopped in the street and then heavily fined or even sent to prison. While the other said that she had decided to stay at home, with the resulting restriction on her private and social life. The judgment was delivered by a 7-judge chamber consisting of President Robert Spano (Iceland), Julia Laffranque (Estonia), I??l Karaka? (Turkey), Nebojša Vu?ini? (Montenegro), Paul Lemmens (Belgium), Valeriu Gri?co (the Republic of Moldova), Stéphanie Mourou-Vikström (Monaco). [Belcacemi and Oussar v. Belgium, Application no. 37798/13, decided on 11.06.2017]

Case BriefsForeign Courts

Supreme Court of United Kingdom: The Supreme Court has held by a 3-2 majority that the Secretary of State for Health’s failure to enable Northern Irish women to access free abortion services under the English National Health Service was not unlawful. The Court observed that the Secretary of State was entitled to respect the democratic decision of Northern Ireland not to fund abortion services, and to take into account the ability of Northern Irish women to purchase private abortion services in England.

Appellant, a resident of Northern Ireland, had undergone an abortion in a private clinic in Manchester. The appellant argued that the respondent’s failure to make a direction so as to provide Northern Irish women free abortion services under the English NHS was unlawful, since, Section 3(1) of the National Health Service Act required him to make such direction. Moreover, the respondent had acted irrationally and unlawfully while taking into account the Northern Ireland Assembly’s decision not to provide abortion services. The appellant also contended that the respondent’s failure to make a direction violated Article 14 of the European Convention on Human Rights taken in conjunction with article 8 because her right to respect for private and family life was not secured without discrimination on the ground of usual residence.

Lord Wilson (with whom Lord Reed and Lord Hughes agreed) noted that under the scheme of Parliament separate authorities in each of the four countries in the United Kingdom had to provide free health services to those usually resident there. The respondent was, thus, entitled to make a decision in line with this scheme for local decision-making. Further, the human rights challenge failed as the difference of treatment between UK citizens present in England on the grounds of usual residence fell within the scope of “other status” for the purposes of Article 14.

The Court noted that the respondent’s decision not to make the direction sought by the appellant was rationally connected to his respect for the devolved scheme for health services and the democratic decision reached in Northern Ireland, and he could not have reached any decision less intrusive upon the Article 8 rights of the appellant. The Court concluded that the respondent had struck a fair balance between the appellant’s rights and the interests of the UK community as a whole and, accordingly, was justified. [R v. Secretary of State for Health, [2017] UKSC 41, decided on June 14, 2017]