Lecture 8 Flashcards
(16 cards)
Sanchez v France - introducing the case
3 parties: sanchez, Facebook and we have a 3rd party (partner about who the comment was made)
Line of event:
1. Facebook post about F.P. by Sanchez.
2. This post attracted comments by third parties which were of racist nature.
3. Then there was a criminal complain against sanchez (by Leila T. (F.P.’s partner)
4. The domestic court said that sanchez was guilty of incitement to hatred/violence against a group or individual on account of their ethnic origin/religion
Sanchez argued that his right to freedom of expression was violated, and if he could be accountable for the comments of third parties?
➞ the European court agreed with the domestic court. No right to the violation of freedom of expression. They talked about the responsibility that sanchez had (as he was a politician) and was a professional in communication and should have deleted it.
Eweida and others v UK - an introduction to the case
Eweida was working for British airways but could wear her cross necklace. 2nd, was a nurse and could wear her cross necklace either because of public safety. 3rd applicants said that he couldn’t approve same sex couples and the 4th couldn’t give same sex couples therapy.
➞ For some there was a violation of freedom of religion, and for others there weren’t.
G4S secure solutions (achbita)
➞ this is a court of justice case
Concerned the company where the person was working and she wanted to start wearing a headscarf. The company said that she couldn’t because of neutrality. Court said that although there isn’t any direct discrimination, but there may be a case of indirect discrimination where religions are affected.
Gouch v UK - an introduction to the case
Gouch believed that he should be able to walk naked. Is this freedom of religion or expression?
the law on freedom of religion
➞ art 9 ECHR
➞ art 10 CFR
They are quite similar. But the charter is a bit more modern
typology on the freedom of religion
You can divide it into two different parts - also in article 9 ECHR:
1. Intern aspect (forum internum) ➞ thought, conscience and religion + freedom to change the religion
2. External aspect (forum externum) ➞ manifestation of your religion
scope of the freedom of religion + gough case
➞ broad, but it’s not unlimited (see Gough vs UK). You could wonder if this was actually an expression of his religion or rather just freedom of expression.
Subjective and objective elements
➞ according to the court art 9 of the convention wasn’t applied as it was about his own body
interference - freedom of religion
- Positive and negative obligation when it comes to the freedom of religion
- Internal and external aspect
- Internal for e.g.: indoctrinating people, in some countries they put people in an institution OR when you are forcing people to say what their religion is to the state
- Possibility of circumventing a limitation?
justification - freedom of religion
➞ you need to distinguish the internal and external aspect
internal: you cannot interfere (there is no room for justification) = absolute right
external: can be limited (art 9(2) ECHR)
- law in place that allows for the interference?
- legitimate aim? ➞ see list: public health and safety, protection animal welfare, etc
- necessary in a democratic society ➞ look at proportionality and suitability
the law of freedom of expression
Article 10 ECHR: everyone has the right of expression, to hold opinions and receive and import information and ideas
Article 11 CFR
➞ they are similar, but the charter is more modern
scope of the freedom of expression
Very broad. Its not just about protecting speech, but also artistic expressions (paintings, books, etc).
The Gough case wasn’t seen under the freedom of religion, but it was expression.
➞ it also contains the right to remain silent
is freedom of expression limitless?
the right is not limitless➞ not everything is included
- think about hate speech for example
it is either not protected under article 10 ECHR or that the court says that it does fall under article 10 but that there is a justification for it
justification of the freedom of expression
➞ general limitation clause of article 10
- prescribed by law
- legitimate aim
- necessary in a democratic society
Factors to access whether there has been an interference and if it can be justified
➞ court established these in the sanchez case, but there aren’t definite factors (just to help case by case)
- Contribution to a public interest
- Public v private person
- Public figure doctrine
- Preventive v repressive measure
- Aim
- Nature of expression ➞ can you qualify this as hate speech..?
- Modality
state responsibility (horizontal effect - freedoms)
the court deal with them in 2 different manners
1. scrutinising domestic courts ➞ sanchez v. france
2. accepting positive obligations (to protect human rights) ➞ eweida and others
fair balance test with horizontal effect
- individual’s interest
- interest of the government
- balancing the goverment with the individual interests
