Loading presentation...

Present Remotely

Send the link below via email or IM

Copy

Present to your audience

Start remote presentation

  • Invited audience members will follow you as you navigate and present
  • People invited to a presentation do not need a Prezi account
  • This link expires 10 minutes after you close the presentation
  • A maximum of 30 users can follow your presentation
  • Learn more about this feature in our knowledge base article

Do you really want to delete this prezi?

Neither you, nor the coeditors you shared it with will be able to recover it again.

DeleteCancel

Make your likes visible on Facebook?

Connect your Facebook account to Prezi and let your likes appear on your timeline.
You can change this under Settings & Account at any time.

No, thanks

Case Law of the European Court of Human Rights

No description
by

Petr Kudelka

on 13 December 2013

Comments (0)

Please log in to add your comment.

Report abuse

Transcript of Case Law of the European Court of Human Rights

Case Law of the European Court of Human Rights
influential cases
guiding principles
legal development
open questions

Key
Principles



Charter as a "living Instrument"
Extraterritorial Application
of the ECHR
The Margin of Appretiation
"Positive Obligations"
Autonomous Interpretation
Question of "National Security"
Application and Interpretation
Freedom of Expression


ARTICLE 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent States
from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary
Freedom of Religion
ARTICLE 9
Freedom of thought, conscience and religion
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
Right to Privacy
ARTICLE 8
Right to respect for private and family life
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 o
Right to Equality
ARTICLE 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status.
Excursion: EU Anti Discrimination
Charter of Fundamental Rights of the European Union
Article 21
Non-discrimination
Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Principles of equality and non-discrimination
…are binding for legislation and policy implementation.
Governmental bodies, parliaments, public authorities, courts are obliged to fulfil the principles of equality and non-discrimination

Prohibition of discrimination and the principle of
equality are also applicable between private persons

Allow for preferable treatment of certain persons/groups
To compensate and hinder disadvantages on specific grounds, such as gender, race, religion, etc.
examples:
-Special recruiting measures to increase the percentage of people with migration background within the police
-Quota systems
Aims at substantive equality!
----> AFFIRMATIVE ACTION

Employment

Access to employment

Conditions of employment, including dismissals and pay

Access to vocational guidance and training

Worker and employment organisation

Goods and Services which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life

Housing

Social Security

Social Advantages

Education

With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.
This means that specific groups may treated favourably for a certain period. (action programmes, quota systems)

Member States are obliged to ensure that judicial and/or administrative procedures are available to all persons who are discriminated against the grounds defined and within the scope stipulated by the directives
Shift of Burden of Proof:
When a person establishes facts from which it may be presumed that there has been direct or indirect discrimination it shall be for the respondent to prove that there has been no breach of the principle of equal treatment
Categories of Discrimination
Direct discrimination
is defined “to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation”

Indirect discrimination
refers to a situation where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin or of one sex or having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Victimisation
refers to the discrimination of a person who was involved in a case of discrimination either as person concern or witness insofar as they revealed or reported the case or acted as a witness for the victim
Scope of Protection
Anti Discrimination Policy
Positive Action
Art. 10 ECHR reads:

“Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authorities and regardless of frontiers. …”

It may be restricted by law and if it necessary in a
democratic society, inter alia,
- in the interest of national security or public safety,
- for the prevention of disorder or crime,
- for the protection of health or morals, and
- for the protection of the reputation or rights of others
(individual interests).
General Opinion of the Court
As to the importance of freedom of expression
according to Art. 10 ECHR:

Freedom of expression is an essential foundation
of a living and pluralistic democratic society and
one of the basic conditions for its progress
(collective approach) and the development of every
human being (individual approach).

Pluralism, tolerance, and broad-mindedness are
typical features of every democratic society.

Freedom of expression is applicable not only to
“information” and “ideas” that are favourably
received, but also to those that offend, provoke,
shock or disturb.

Freedom of expression protects not only the
substance of ideas and information expressed
but also any form in which they are communicated.

“Value judgements” based on true facts and
objectively understandable explanations are free.

Facts which are disseminated and imparted have to
be true respectively have to be proved.
Contrary rights and interest
Freedom of expression often gets into
conflict with other individual rights:

Right to respect for private and family life (Art. 8
ECHR),

Freedom of thought, conscience and religion (Art. 9),

Right to life, human dignity and personal integrity
(Art. 2, 3 and 8 ECHR),

Rights not be discriminated, harassed or defamed.

These topics are regularly regulated by civil
and penal law.
Contrary Rights and Interests
Freedom of expression often comes also into conflict with certain public and group interests by:

violating or endangering public order and safety,

calling upon for committing crimes or violence,

disregard of moral principles or social convictions,

disregard of cultural or ethnic characteristics of people and their religious beliefs or values,

disrespect and running down of collective characteristics of groups, etc., sometimes expressed in the form of hate speech.
Limits of freedom of Expression
Freedom of expression may be restricted
according to the conditions of Art. 10 para. 2
principle of proportionality

Principle requires a justified reason for the
restriction and a fair balance between the conflicting
interests

Expressions which cannot be justified accordingly
are “excessive expressions” and may be forbidden

The limits of acceptable criticism are wider with
regard to politicians acting in their public capacity
and private persons who are “public figures”
Prohibition of the Abuse of Rights
Art. 17 ECHR provides for that no person or group
has any right

to engage in activities or to perform acts aimed at the destruction of any rights and freedoms guaranteed in the ECHR

or at their limitation to a greater extent than is
provided for in the ECHR.

This provision guarantees that human rights
Must not be abused to diminish European
human rights standards.
Jersild v. Denmark (1997)

conviction of a journalist abetting
in the dissemination of racist views in a television interview
conducted with members of an extreme right-wing group
violation of Art. 10 ECHR
Hate
speech
Norwood v. UK (2003)

Poster with a photo of the Twin
Towers in flame and the words: “Islam out of Britain – Protect
the British People” made public by the extreme right-wing British National Party

public expression of attack on all
Muslims in UK
incompatible with tolerance, social peace
and non-discrimination
constitutes an act within the
meaning of Art. 17, no protection by Art. 10 ECHR.
Gündüz v. Turkey (2003)

conviction of the leader of an Islam sect who criticized democratic and secular
institutions because of “defaming god” and called for the introduction of the Sharia

violation of Art. 10 ECHR because he was invited to give an interview on
his opinion in TV and did not call for the use of violence to establish the Sharia
no “hate speech”
I.A. v. Turkey (2005)

conviction of a book author
because of blasphemy against “god, the religion, the
prophet and the holy book”

denial of religious
beliefs and propagation of doctrines hostile to faith
must be tolerated
but “abusive attack” of the
prophet excessive
no violation of Art. 10 ECHR
Preamble:goal is development of human rights

Article 1 ECHR: Responsibility of States to fully
guarantee the rights

Autonomous interpretation of rights
- not in
accordance with national legal orders but in
comparison with them

ECHR is
„living instrument“
- which must be
interpreted in the light of
present-day conditions in
order to achieve effective (and not illusionary)
Protection

Prohibition of discrimination (Art 14 ECHR and
12th Additional Protocol) to be taken into account

Human rights protection has to be effective

access to justice needed, remedies provided
• substantive and procedural obligations to respect, protect and fulfil - “positive measures”
Some rights are absolute and must not even set out of force or restricted in case of war or other emergency situations (Article 15 ECHR)

• Right to life, prohibition of torture, prohibition of slavery,
principle nulla poena sine lege

In any other case restrictions must be necessary in a “democratic society” and proportional in relationship to legitimate aims pursued (“principle of proportionality”)
Necessary requirements for restrictions of
rights (principle of proportionality)
„necessity test“:
• Based on law
• Following
legitimate aims
(according to conditions for interferences into rights of the Convention)

Restriction necessary in a “democratic society”
which stands out due to the ideas of
freedom, tolerance, openness, pluralism
• Restrictions must be proportional to legitimate aims pursued - weighing of interests needed

There must be a
„pressing social need“
for any
restriction! (ECtHR‘s case-law)
military accountable for human rights abuses
responsibility of the
UK to carry out effective investigations into the killing of civilians by UK forces
:
in the exceptional circumstances deriving from the United Kingdom’s assumption of authority for the maintenance of security in South East Iraq from 1 May 2003 to 28 June 2004, the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah and, that
there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 of the Convention.

The case concerned the
deaths of the applicants’ six close relatives in Basrah in 2003 while the UK was an occupying power:
three of the victims were shot dead or shot and fatally wounded by British soldiers; one was shot and fatally wounded during an exchange of fire between a British patrol and unknown gunmen; one was beaten by British soldiers and then forced into a river, where he drowned; and one died at a British military base, with 93 injuries identified on his body.



Al-Skeini and Others v the United Kingdom
Loizidou vs. Turkey
Loizidou v. Turkey is a
landmark legal case regarding the rights of refugees wishing to return to their former homes and properties
. The European Court of Human Rights ruled (24 years after she had filed her case) that Mrs. Titina Loizidou, and consequently all other refugees, have the right to return to their former properties. The ECHR ruled that Turkey had violated Mrs. Loizidou's human rights, that she
should be allowed to return to her home and that Turkey should pay damages to her
. Turkey initially ignored this ruling.
On 22 July 1989 a Cypriot national Mrs. Titina Loizidou filed an application against Turkey to the European Court of Human Rights. Mrs. Loizidou had been forced out of her home during Turkey's invasion of Cyprus in 1974 along with around 200,000 other Greek-Cypriots. During more than 20 years, she made a number of attempts to return to her home in Kyrenia but was denied entry into the Turkish occupied part of Cyprus by the Turkish army.
Her
application resulted in three judgments by the European Court of Human Rights (Strasbourg) which held Turkey responsible for human rights violations in the northern part of Cyprus, which is under overall control of the Turkish armed forces
.
Art. 1: the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in (...) this Convention

no definition of the term ‘jurisdiction’ is provided
in art. 1 nor in any of the other articles of the Convention

Court uses the notion of protection of human rights to develop extraterritorial jurisdiction

The Court has stated that “a
State’s responsibility may be engaged where it in practice exercises effective control of an area situated outside its national territory.”
This rule applies to cases of
occupation when authority is imposed by alien forces possessing effective control.

In the case of
occupation, jurisdiction
shifts from the original state to that exercising effective control
.
The ECtHR interprets the legal notions employed in the European Convention on Human Rights
autonomously
.
Terms which are contained in the Convention may have a different scope within the legal framework of a contracting state; the Court does not consider itself bound by the meaning which these terms have in a domestic jurisdiction
. Thus, the protection afforded by the Convention may be much wider in scope than the protection offered under national law. For example, the notion of
family life (and the obligations of the state to respect it) may extend to forms of cohabitation which are not considered as constituting a ‘family
’ under the laws of a member state.
Kostovski vs. Netherlands
informers had testified to police and to an investigative judge that the applicant had been
involved in a robbery. Since the informers wished to remain anonymous, they did not testify during the trial and the applicant was not given the opportunity to question them directly. Instead, the police officer and the investigative judge, to which the informers had given the information, testified and relayed what the informers had told them
. After his conviction, the applicant submitted an application to the European Court of Human Rights. He relied on Article 6 para 3 letter d) ECHR and claimed that his right to confront a witness against him had been violated. The Dutch Government argued that he had not been denied this right, because pursuant to Dutch procedural law the police officer and the investigative judge, who had testified during the trial, had been the witnesses – and the applicant had had the opportunity to question them. The Court rejected this argument. It
pointed out that the question, who is a witness did not have to be decided on the basis of domestic law but that the term had to be interpreted autonomously. Applying this autonomous interpretation, the Court ruled that the persons who had provided the information about the involvement of the applicant were to be considered witnesses
While the European Court of Human Rights is not formally bound by precedents, it has held that it is in the interest of legal certainty and foreseeability of rulings not to change its jurisdiction without compelling reasons.

On the other hand, the Court has reiterated that the ECHR is a ‘living instrument’. The rights enshrined in the Convention have to be interpreted in the light of present day conditions so as to be practical and effective. Sociological, technological and scientific changes, evolving standards in the field of human rights and altering views on morals and ethics have to be considered when applying the Convention.
Schalk & Kopf vs. Austria
Court has acknowledged that same-sex couples enjoy the protection afforded to family life by art.8. in view of ‘
the rapid evolution of attitudes towards same sex-couples
’ which had taken place in many Council of Europe member states and the growing tendency to include same-sex couples in the notion of family in EU law
ECHR obliges member states to secure certain rights, but it is silent as to how precisely they have to meet this obligation. States have a margin of appreciation when ensuring the rights enshrined in the Convention. It is to a
certain extent for the states to determine which measures they take to make sure that the convention rights are respected
.
If different rights guaranteed by the ECHR collide, the member states have a degree of discretion when deciding which of the rights they prioritize
The term “margin of appreciation” refers to the space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European
The term “margin of appreciation” refers to the space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European
Consequently, the process of
realising a “uniform standard” of human rights, protection must be gradual because the entire legal framework rests on the fragile foundations of the consent of the Member States. The margin of appreciation gives the flexibility needed to avoid damaging confrontations between the Court and the Member States and enables the Court to balance the sovereignty of Member States with their obligations under the Convention
Interpretative Principles
“The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted.
By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them.
Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of "necessity" in this context.
1. Effective protection

The first principle – the effective protection, inherent in the text, holds that, since the overriding function of the Convention is the effective protection of human rights rather than the enforcement of mutual obligations between States, its
provisions should not be interpreted restrictively in deference to national sovereignty
.
2. Subsidiarity and review

The principle of subsidiarity means that the state should itself decide democratically what it’s appropriate for itself.
The principle of review states that the role of the Court is not one of final court of appeal or “fourth instance”.
Therefore, the
main responsibility of ensuring the rights provided in the Convention rests with the Member States, and the role of the Strasbourg organs is limited to ensure whether the relevant authorities have remained within their limits
1
There is an obvious tension between subsidiarity and universality – the idea of insisting on the same European protection for everyone, by the developing of common standards.
3. Permissible interferences with Convention rights

Many of the rights contained in the Convention are conditional and may interfere with particular circumstances. However, these permitted infringements must possess certain characteristics if they are to be accepted within the Convention and its case-law.
a). Prescribed by law/in accordance with law
This first characteristic contains three requirements.
First of all, any
provisions that interfere with Convention rights must impose a sufficient element of control over the relevant decision-maker so as to avoid the exercise of arbitrary action
. There must be a measure of legal protection against arbitrary interference by public authorities with the right in Art.8, especially where a power of the executive is exercised in secret and the risk of arbitrariness is evident.

The second requirement –
accessibility, insists that a person who is likely to be affected by the rule should have access to it
.

The third requirement – certainty, means that the
law should be sufficiently clear to allow individuals to govern their future behaviour. A person must be able – if need be with appropriate advice – to foresee, up to a reasonable degree - given the circumstances, the consequences which a certain action may entail.
Those consequences need not, however, be foreseeable with absolute certainty.
b). Legitimate aims
The Convention lists a number of legitimate aims,
allowing the claimed right to be interfered with, provided it was prescribed in accordance with the law and necessary in a democratic society to do so.

Any interference with the above Convention rights has to accord to such a legitimate aim and the Member State must show that the relevant legal provision pursued one of the aims laid down in, and was genuinely applied to the applicant in a particular case. Thus, a legitimate aim cannot be a pretext for a measure taken for another improper purpose, as noted in Art.18.
c). Necessary in a democratic society
The third characteristic means that it isn’t enough that the State interfere with the applicant's rights for a legitimate purpose; the Court must also be
satisfied with the restriction and consider it necessary given the circumstances
. This involves the Court making a qualitative decision regarding the merits of the relevant domestic legal provision and its application.
Moreover, the Court insists that there is
a strong objective justification for the law and its application
. For example, although it might be useful or convenient to have a law that prohibits the publication of material likely to cause offence or annoyance to the majority of society, it would not for that reason alone be „necessary” to have such a law.
In Handyside, the Court ruled that the word „
necessary” meant that there must be a „pressing social need” for the interference.
While
evaluating whether it exists such a „pressing social need” or not, national authorities are allowed a margin of appreciation. It is in fact the evaluation of democratic necessity that has spawned the most significant principles of interpretation – the principle of proportionality.
4. Proportionality

The doctrine of proportionality is at the heart of the Court’s investigation into the reasonableness of the restriction. Although the Court offers a margin of appreciation to the Member State and its institutions, the
Court’s main role is to ensure that the rights laid down in the Convention are not interfered with unnecessarily.
The principle of proportionality requires that there be a
reasonable relationship between a particular objective to be achieved and the means used to achieve that objective
.
The different versions of the proportionality test appear to reflect various standards of review in different contexts.
The strict approach set out in
Handyside
is appropriate where fundamental rights are at stake (such as freedom of expression or intimate aspects of private life) and consists in a four questions test:

· Is there a
pressing social need for some restriction of the Convention?
· If so, does the particular restriction correspond to this need?
· If so, is it a proportionate response to that need?
· In any case, are the reasons presented by the authorities, relevant and sufficient
?
states can be obliged to act and to take active steps to ensure an effective enjoyment of the rights protected by the Convention. The scope of positive obligations is usually less clear than the ambit of the ‘negative obligations’ to refrain from certain actions. When establishing whether a certain positive obligation arises from an article of the Convention, a fair balance has to be struck between the interests of the individual and the interest of the community at large
1) Carrying out an effective investigation
in cases of potential or alleged human rights violations. The main fields of application of this obligation are the right to life and the prohibition of torture, but the European Court of Human Rights has also inferred positive obligations from other articles of the Convention. For example, in the case Özgur Gündem v. Turkey the Court held that article 10 ECHR (Freedom of expression) may entail an obligation to conduct effective investigations of threats against journalists.
2) Adopting laws or amending legislation
Despite of the margin of appreciation which contracting states have when deciding how to secure the convention rights (see above),the ECHR may entail a positive obligation to pass certain laws in order to ensure an effective protection of the rights enshrined in the Convention. In the case X and Y v The Netherlands, the Court dealt with the effective protection of the right to private life under Art. 8. The applicant was a mentally disabled girl who lived in a residence for disabled persons. The son of the director of this privately run residence forced her to have sexual intercourse with him. According to Dutch law in force at the material time, taking advantage of a person’s mental disability for sexual reasons did not constitute a punishable act. There was, however, a possibility to file a civil action and gain compensation. The European Court of Human Rights held that the effective protection of the right to private life required a criminal sanction in cases like the one at hand.
3) Taking certain actions.

The ECHR may also impose a positive obligation to take factual measures or actions which guarantee the effective enjoyment of rights entrenched in the Convention. For example, the Court has reiterated that the right to assembly (Art.11 ECHR) may carry with it an obligation to protect demonstrations and ensure their peaceful conduct (Oya Ataman v Turkey).

4) Making institutional changes.
Contracting states may be under an obligation to organize their institutions in a fashion that ensures that rights guaranteed by the Convention become effective. For example, Art. 6 provides for a right to a trial within reasonable time. This does not only entail an obligation for the judge(s) handling the case to proceed without undue delays. It also means that contracting states have to provide the Court system with sufficient resources and to organize it in a way that ensures speedy trials (Bottazzi v Italy, Salesi v Italy )
A chronological approach to ECtHR jurisprudence shows a common theme of the national security doctrine. Due to the
tendency of political and economic interests to alter over time, a definition of national security interests is probably unattainable
. However, since the case of Leander [1987], the ECtHR has ruled time and time again that the
determination of national security threats must not be arbitrary
. Most recently, the ECtHR held that
determinations of national security threats must be subjected to “meaningful judicial scrutiny”
whereby
such determinations can be challenged by the individuals affected before an independent review body
. Threats to national security must therefore be
demonstrable and individuals whose rights have been limited for national security reasons should be able to challenge this reasoning
. Otherwise, there is no limit on the state’s power to restrict the rights of those who challenge its hegemony.
Margin of Appretiation - Interpretative Principles
A, B and C v Ireland - Abortion
Discussion?
Religious-right lobby succeeds in sabotaging progressive EP report on women’s reproductive rights
Russia's anti-gay 'propaganda law'
Same Sex Marriage?
Religious Freedom
at the Workplace

Nadia Eweida, the court held that the British Airways check-in operator should not have been refused permission to wear the cross visibly at work. The judges stated that her right to manifest her religion was violated.

ECtHR rejected the application of a nurse whose employers forbade her from wearing the cross on health and safety grounds.

The Court also rejected the application filed by a city hall registrar who claimed discrimination after she was disciplined for refusing to officiate same-sex civil partnerships.

The fourth application brought by a relationship therapist who was dismissed for refusing to provide counseling to homosexual couples was also rejected
Alda gross v. Switzerland -
Right to die?

Yogakarta Principles
Leyla Şahin v. Turkey
Lautsi vs. Italy - Cruzifix in Classroom
Buscarini and Others v. San Marino
Otto-Preminger-Institut v. Austria
Otto-Preminger-Institut v. Austria
HRComm:
Seizure had been
disproportionate, since there was no risk that children or others who might be offended by its content would be accidentally confronted with the film
.

The
ECtHR disagreed.
The ECtHR noted that believers
“must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith,” but at the same time found that states may be justified, even required, to protect religions against the harshest attacks
:
[T]he manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the
responsibility of the State
, notably its
responsibility to ensure the peaceful enjoyment of the right [to freedom of religion
] … The respect for the religious feelings of believers ... can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration; and
such portrayals can be regarded as malicious violation of the spirit of tolerance
, which must also be a feature of democratic society.
The ECtHR concluded, by six votes to three, that the
Austrian authorities could reasonably have considered the seizure of the film “necessary in a democratic society”
in order to protect the rights of others.
The decision in the Otto-Preminger case came in for
heavy criticism amongst scholars, many of whom questioned how the ECtHR had been able to conclude that the showing of the film had impaired the right of believers to practice their faith.
Others noted that in
a religious society like Austria, dissenting voices need the protection of the law more than the dominant Catholic Church
, and that a right to freedom of expression which protects only views which are already accepted is of little use.blasphemy, as prohibited under the criminal law.
Austrian Prohibition Act
Pussy-Riot Blasphemy?
Smith and Grady vs. UK
Dudgeon v United Kingdom
Woditschka vs. Austria
Goodwin vs. UK
Aleksejev vs. Russia
Schalk u. Kopf vs. Austria
D.H. and Others v Czech Republic
Vereinigung Bildende Künstler vs. Austria
Lingens vs. Austria
Handyside vs. United KINGDOM
Facts
: Smith had been a member of the Royal Air Force since 1989. In June 1994 a woman telephoned the air force alleging that Smith was a lesbian and had been sexually harassing the caller. Smith was questioned by the service police and admitted that she was gay and that she had a same-sex relationship while in the RAF. The service police asked her intimate question on the details of her sexual life, asking for the names of previous partners, her HIV status and other details. A few months later Smith was given an administrative discharge from the Royal Air Force.[4] Grady had been a member of the Armed forces since 1980 but was discharged following disclosures of a nanny working for the British Defence Liaison Service.[4] The applicants sought to challenge their discharges first through a domestic judicial review, and when this was unsuccessful they launched an application to the European Court of Human Rights. They were represented by the human rights organisation Liberty
Justified Interference? In order for an interference under article 8 to be justified it is necessary that it is in accordance with the law, in the pursuit of a legitimate aim, and must be considered necessary in a democratic society.

The government policy had been given both statutory recognition and recognition by the lower courts and the court considered that the policy could be said to be in the pursuit of the
legitimate aim interests of national security"
and
"the prevention of disorder".
However, the
court was not satisfied that the policy could be considered "necessary in a democratic society"
. The court was not satisfied that the government had provided credible justification for its treatment of homosexual personnel.
”these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights outlined above any more than similar negative attitudes towards those of a different race, origin or colour.”

The court considered that the
government had not offered convincing and weighty reasons for the investigation of the applicants sexual orientation or their subsequent discharge and therefore considered that there had been a breach of their right to a private life under Article 8 of the European Convention
Three anonymous women, recorded in the case as "A, B and C" travelled to the United Kingdom to have abortions, because they were unlawful in Ireland.

A, thinking her partner was infertile, had fallen pregnant unintentionally. She was unmarried, unemployed, living in poverty, with an alcohol addiction and had four children, all in foster care and one disabled. At risk of post-natal depression and feeling a fifth child would risk her progress in becoming sober, she borrowed €650 from a money lender at a high interest rate to pay for travel and a private clinic in the UK, arriving secretly in the UK without telling her family or social workers or missing a contact visit with her children. On the returning train from Dublin she began bleeding profusely, was taken to hospital for a dilation and curettage and suffered pain, nausea and bleeding for weeks thereafter but did not seek further medical advice. After the claim being made to the ECHR, she became pregnant again and gave birth to a fifth child, while struggling with depression. However she regained custody of two of her children.

B fell pregnant after her "morning after pill" failed. Two different doctors advised there was a risk of an ectopic pregnancy, although she had found it was not. She borrowed a friend's credit card to book flights to the UK. To ensure her family would not find out, she listed nobody as her next of kin once in the UK and travelled alone. The clinic in the UK advised her to tell the Irish doctors she had had a miscarriage. Two weeks after returning from Ireland she began to start passing blood clots, and sought follow up care in a clinic in Dublin related to the English clinic, rather than attending an ordinary doctor because of her uncertainty of abortion's legality in Ireland.

C had been undergoing chemotherapy for cancer for 3 years. She had wanted children, but advice from doctor's indicated that a foetus could be harmed during any ongoing chemotherapy. The cancer went into remission and she unintentionally became pregnant. While consulting her general practitioner on the impact of the pregnancy on her health and life and tests for cancer on the foetus, she alleged that she received insufficient information due to the chilling effect of the Irish legal framework. She researched the issues on the internet alone. Because she was unsure about the risks, she decided to go to the UK for an abortion. She could not find a clinic for a medical abortion, since she was a non-resident and the need for a follow up, so she needed to wait a further 8 weeks for a surgical abortion. The abortion was incompletely performed. She suffered prolonged bleeding and infection, and alleged the doctors provided inadequate medical care, and her general practitioner failed to refer to the fact after subsequent visits that she was no longer visibly pregnant.
The
Irish Constitution
section 40.3.3 provides that "
the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that righ
t." Ireland's laws state abortion is only allowed where
continuation of pregnancy would put a woman's life (not merely health or other interests) at risk
.
A, B and C argued the restrictions violated their right to not be subject to
degrading and humiliating treatment
under article 3, their
right to respect for their private lives
under article, a
right to an effective national remedy
for these rights under article 13 and
equal treatment
in relation to Convention rights under article 14. C further alleged her right to life, given the danger resulting from prohibiting abortions, was violated under article 2. The Irish government chose to defend the case, its Attorney General Paul Gallagher, pointing out that
Ireland's laws had been endorsed in three referenda
. He requested the dismissal of the case on the grounds that no domestic remedies had been sought by A, B or C and that there was no evidence that they interacted with verifiable legal or medical personnel or institutions in Ireland. The women were supported by a host of charities, while various anti-abortion campaigners intervened to support Ireland
Judgement:

The Court held that
"Article 8 cannot... be interpreted as conferring a right to abortion"
.
It nevertheless considered that
Ireland had violated article 8 of the European Convention on Human Rights with regard to the third applicant, C. because it was uncertain and unclear whether she could have access to abortion in a situation where she believed that her pregnancy was life threatening
. Rather than information being unavailable, the problem was that there was nowhere C could go to secure a legally authoritative determination of what her rights were in her situation. In this regard it noted the "
significant chilling" effect of Irish legislation
. All other complaints were dismissed. All of A, B and C's arguments that article 3 (right against inhuman and degrading treatment) as well as C's additional argument that article 2 (right to life) were violated were dismissed as "manifestly ill founded". The claims of A and B on the basis of article 8 were dismissed, because although it recognised the "
serious impact of the impugned restriction on the first and second applicants" and that there was consensus 'amongst a substantial majority of the Contracting States' regarding the legality of abortion, the Court did "not consider that this consensus decisively narrows the broad margin of appreciation of the State."
Thus Ireland had a broad margin of appreciation to maintain its existing laws where they were sufficiently clear. The Court did not consider it necessary to examine the applicants' complaints separately under Article 14 of the Convention.
The applicant, an
artists' association
, sponsored an art exhibition entitled "The century of artistic freedom". One of the works on display was a painting entitled
"Apocalypse" by Austrian artist Otto Mühl
. The work contained sexual depictions of public figures, including Mother Teresa, Austrian Cardinal Hermann Groer, and various members of the Austrian Freedom Party (FPÖ). The
bodies of the figures were rendered in paint, while their heads and faces were depicted by newspaper photos
, sometimes with the eyes obscured by black bars. One of the figures depicted was Mr.
Meischberger, a former FPÖ politician, who was portrayed as gripping the ejaculating penis of Jörg Haider while simultaneously being touched by two other FPÖ politicians and ejaculating on Mother Teresa
. The painting attracted considerable public controversy. At one point, a visitor damaged the painting by throwing red paint at it. The resulting damage partially obscured Mr. Meischberger's face from view.

Meischberger sued the artists' association seeking an injunction against any further exhibition of the painting.
Meischberger claimed that the painting debased him and his political activities and that it alleged he lived a loose sexual life. He also claimed that neither the black eye bars nor the red paint prevented him from being recognized in the painting. The
Austrian trial court held that the painting was protected by the freedom of expression
, noted that the red paint made Mr. Meischberger no longer visible in the painting, and declined to grant the injunction. The
Vienna Court of Appeal reversed and issued a perpetual injunction barring the artists' association from exhibiting the painting again
. The Austrian Supreme Court declined to overturn the ruling of the appellate court.

The artists' association applied to the European Court of Human Rights for relief, claiming their
right to free expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been violated
The Court held, four votes to three, that there
had been a violation of Article 10
.

Application of Article 10 to works of art
The Court first examined whether Article 10's free expression rights also apply to artwork. The majority began by recalling the
importance of free expression, even for information and ideas "that offend, shock or disturb the State or any section of the population".
Included in this category are works of art:

Those who
create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society
.

Necessity in a democratic society

The Court then turned to the question of whether that interference was necessary in a democratic society. In doing so, it
balanced the right of the applicant against the rights of other parties
.

The Austrian government proffered two reasons for the interference:
1) protection of public morals; and, 2) protection of the rights of others (i.e. Mr. Meischberger)
. Noting that neither the national law nor the decisions of the Austrian courts referred to the need to protect public morals, the Court held there was only one possible reason for the interference with the applicant's rights: the protection of the rights of others.

Against the State's interest in the rights of others, the Court balanced the applicant's right to free expression. The Court noted that, as a
political figure, Mr. Meischberger must "display a wider tolerance in respect of criticism
". Turning to the facts of the particular case, the Court noted:

[
T]he painting obviously did not aim to reflect or even to suggest reality...
. The Court finds that such a portrayal amounted to a
caricature of the persons concerned using satirical elements
. It notes that
satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate
. Accordingly, any interference with an artist's right to such expression must be examined with particular care. (at para. 33)

[T]he
Austrian courts' injunction was not limited either in time or in space. It therefore left the applicant... with no possibility of exhibiting the painting irrespective of whether Mr. Meischberger was known, or was still known, at the place and time of a potential exhibition in the future
.
The Court concluded:

[H]aving balanced Mr. Meischberger personal interests and taking account of the artistic and satirical nature of his portrayal, as well as the impact of the measure at issue on the applicant association, the Court finds that the Austrian courts' injunction was disproportionate to the aim it pursued and therefore not necessary within a democratic society[.] (at para. 38)
Accordingly, the Court found there was a violation of Article 10 of the Convention.

Judge Loucaides dissented, arguing that the painting infringed on Mr. Meischberger's personal dignity and communicated no socially or politically valuable message
Judges Spielmann and Jebens argued that even if the painting was a work of art, it could still be regulated if it deprived someone of their personal dignity. They recalled the Court's longstanding jurisprudence that "where the 'protection of the rights of others' is at stake, artistic freedom cannot be unlimited" (dissent at para. 5).
Judges Spielmann and Jebens also suggested that the painting may have also infringed upon Mr. Meischberger's Article 8 rights under the convention.
Otto Preminger Institute is a cultural institution established in the capital of the Austrian province of Tyrol. The Institute organizes exhibitions, theatre performances and film screenings. The reason for filing the case is the
screening of a film production based on a literary work by an Italian author – "Council in Heaven"
. The plot is a
free interpretation of an evangelical story – episodes of the life of Jesus Christ with the appearance of characters such as the Virgin Mary and other evangelical personages. Most scenes contain erotic content and it is difficult for the audience to identify message of the author, especially in view of the limited text. These leave the impression of pornography
and make the average viewer uncomfortable and unable to react.

The film causes
confusion, lack of understanding and, eventually, anger in everyone morally and emotionally connected with the Christian religion
and, in particular, the Roman Catholic Church and the Catholic religious practice. Considering the fact that the largest percentage of Catholics in Austria live in Tyrol, it is logical that angry reactions soon follow.

In response to that, the first to intervene is the Prosecutor’s Office, followed by the Austrian Court. The result is that the
film is taken off screen, and then confiscated
. An appeal is filed to protest against these measures, which is rejected by all instances
Jeff Dudgeon was a shipping clerk and
gay activist
in Belfast, Northern Ireland, when he was
interrogated by the Royal Ulster Constabulary about his sexual activities
. He filed a complaint with the European Commission of Human Rights in 1975, which after a hearing in 1979 declared his complaint admissible to the European Court of Human Rights.


On 22 October 1981, the Court agreed with the Commission that Northern
Ireland's criminalisation of homosexual acts between consenting adults was a violation of Article 8
of the European Convention on Human Rights which says: “Everyone has the right to respect for his private and family life, his home and his correspondence.
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 …for the protection of health or morals....”
Judgement was given in Dudgeon's favour on that aspect by 15 votes to 4.
It stated the
“restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved.
” However, the ruling continued, "
it was for countries to fix for themselves...any appropriate extension of the age of consent in relation to such conduct."
The applicants, Michael Woditschka and Wolfgang Wilfling, are Austrian nationals, born in 1979 and 1964. They were both convicted of having committed homosexual acts with an adolescent aged between 14 and 18. The
applicants complained of the maintenance in force of Article 209 of the Austrian Criminal Code, which criminalised homosexual acts of adult men with consenting adolescents between the ages of 14 and 18, and of their convictions under that provision
.
Relying on Article 8 (right to respect for private life), taken alone and in conjunction with Article 14 (prohibition of discrimination) of the European Convention on Human Rights, they alleged that
their right to respect for their private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable
.
The European Court of Human Rights held, unanimously, that
there had been a violation of Article 14 taken in conjunction with Article 8
and that it was not necessary to examine separately the complaint under Article 8.
Richard Handyside, proprietor of "Stage 1" publishers, purchased British rights of The Little Red Schoolbook, written by Søren Hansen and Jesper Jensen and published, as of 1976, in Denmark, Belgium, Finland, France, West Germany, Greece, Iceland, Italy, the Netherlands, Norway, Sweden, and Switzerland as well as several non-European countries. Its chapter on Pupils contained a
26-page section concerning "Sex". Handyside sent out several hundred review copies of the book, together with a press release, to a selection of publications from national and local newspapers to educational and medical journals. He also placed advertisements for the book.
The book became subject of extensive press comment, both favourable and not.
1,069 copies of the book were provisionally seized together with leaflets, posters, showcards, and correspondence relating to its publication and sale. About 18,800 copies of a total print of 20,000 copies were missed and subsequently sold.
A
Magistrates’ Court issued two summonses against Handyside for having in his possession obscene books for publication for gain. Handyside ceased distribution of the book and advised bookshops accordingly but, by that time, some 17,000 copies were already in circulation. On 1 July 1971, Handyside was found guilty of both offences and fined £25 on each summons and ordered to pay £110 costs. His appeal was rejected
.
Using
margin of appreciation doctrine
, the Court held by thirteen votes to one that the
interference in Handyside's freedom of expression was both defined by law, having a legitimate aim and necessary in a democratic society
, thus there was no violation of Article 10 ECHR. Judge H.
Mosler disagreed and filed a dissenting opinion, considering that violation did take place due to interference not being necessary
.
The court had also held unanimously that Handyside's property rights (Article 1 of Protocol No. 1) were not violated
Lingens was fined for publishing in a Vienna magazine comments about the behavior of the Austrian Chancellor, such as
'basest opportunism', 'immoral' and 'undignified'
. Under the
Austrian criminal code the only defense was proof of the truth of these statements
. Lingens could not prove the truth of these value judgments
The European Court of Human Rights stated that a
careful distinction needed to be made between facts and value judgments/opinions
.
The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof
. The facts on which Lingens founded his value judgments were not disputed; nor was his good faith. Since it was
impossible to prove the truth of value judgments
, the requirement of the relevant
provisions of the Austrian criminal code was impossible of fulfilment and infringed article 10 of the Convention
he applicant was from a traditional family of practicing Muslims and considered it her
religious duty to where the Islamic headscarf
. Whilst a student at medical school in Istanbul she was
denied access to a written examination, a lecture and was also refused enrolment by a specific department of the school due to her refusal to remove her headscarf in contravention of a university regulation forbidding, amongst other things, the wearing of the headscarf during academic study on campus
. Before the European Court the applicant alleged that the ban on wearing the Islamic headscarf constituted an
unjustified interference
with her right to freedom of religion, in particular her right to
manifest her religion
. She also alleged violation of a number of other rights, including non-discrimination and freedom of expression. The
State party contested these assertions, claiming that there had been no interference with the applicant's freedom of religion as the ban only applied within the sphere of state education, a public service
. The State argued further that even if there had been an interference it was justified as the principle of secularism was crucial to Turkey's existence as a functioning liberal democracy, and that the ban on Islamic headscarves in higher-education institutions was necessary for protecting that principle.
The Court emphasised that the right to freedom of religion "is one of the foundations of a democratic society" and that "the pluralism indissociable from a democratic society...depends on it"
The Court went on to state that "
Article 9 does not protect every act motivated or inspired by a religion or a belief and does not in all cases guarantee the right to behave in the public sphere in a way which is dictated by a belief
" However, any restriction to the right must be "prescribed by law", in pursuance of a legitimate aim and be "necessary in a democratic society"
The Court asserted that "in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one's religion or belief in order to reconcile the interests of the various groups and ensure that everyone's beliefs are respected"
State was entitled to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the pursued aim of aim of protecting the rights and freedoms of others, public order and safety
In applying these principles to the instant case, the Court accepted the State's position that
secularism in Turkey was "the guarantor of democratic values
, the principle that freedom of religion is inviolable - to the extent that it stems from individual conscience - and the principle that citizens are equal before the law". The court considered that
upholding this notion of secularism might be regarded as necessary for the protection of the democratic system in Turkey
.
The Court stated that
"In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on those who do not practice that religion ... may be justified under Article 9 (2) of the Convention
. In that context, secular universities may regulate manifestation of the rights and symbols of the said religion by imposing restrictions as to the place and manner of such manifestation with the aim of
ensuring peaceful co-existence between students of various faiths and thus protecting public order and the beliefs of others
"

The Court stated that when
assessing whether the ban on headscarves was necessary, regard must be had to "the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it"
The Court had previously noted that the
headscarf might appear to be a repressive measure "imposed on women by a precept laid down in the Koran that was hard to reconcile with the principle of gender equality
". The Court noted that Turkey was a predominantly Muslim country and that there were
"extremist political movements in Turkey that seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts
". The Court accepted the right of States to take a stance against such movements and stated that the ban on headscarves had to be viewed in that context as a l
egitimate measure intended to ensure the protection of pluralism in universities in an environment designed to teach students the value of "respect for the rights of others, and in particular equality before the law of men and women
"
The case stemmed from a request of Mrs. Soile Lautsi, citizen of Finland and of Italy, against the School Council of a school in Abano Terme (province of Padua). When the School Council decided not to comply, Mrs. Lautsi applied to the Veneto Administrative Court. The administrative Court decided, on 17 March 2005, that the
presence of crucifixes in State-school classrooms did not offend the principle of secularism
. Ms Soile Lautsi appealed to the Supreme Administrative Court. The
Supreme Administrative Court upheld the Veneto Court’s decision reasoning that in Italy the crucifix symbolized the religious origin of values (tolerance, mutual respect, valorization of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination) which characterized Italian civilization and that keeping the Crucifix did not have any religious connotations.
Mrs. Lautsi then appealed to the European Court of Human Rights on 27 July 2006. On 3 November 2009, the Court declared that there had
been a violation of the European Convention on Human Rights.
This decision caused uproar in Italy.Mrs Lautsi declared that she had received threats and had been a victim of vandalism, and complained about statements by politicians. The Chamber that considered the case decided that Italy was in violation of Article 9 of the European Convention of Human Rights and Article 2 of the first Protocol to the Convention, reasoning that
among the plurality of meanings the crucifix might have the religious meaning was predominant. The Chamber argued that 'the “negative” freedom of religion was not limited to the absence of religious services or religious education: it extended to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. It added that this “negative right” deserved special protection if it was the State which expressed a belief and dissenters were placed in a situation from which they could not extract themselves if not by making disproportionate efforts and sacrifices
In March 2010, the case was referred to Court's Grand Chamber.Ten countries, 33 MEPs (jointly) and several NGOs were authorised as third parties to present written observations,several others were refused.On 30 June 2010, a hearing was held by the Grand Chamber, which on 18 March 2011 announced its decision, reached by 15 votes to 2, to
overturn the ruling of the lower Chamber. It granted that, "by prescribing the presence of crucifixes in State-schools classrooms - a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity - the regulations confer on the country's majority religion preponderant visibility in the school environment."
But it declared: "
That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1
". It added that "a
crucifix on a wall is an essentially passive symbol and (...) cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities
".
Most
children
from the
Roma minority
in Ostrava attended
special schools with simplified curriculum, forming majority of their students
.
The applicants — 18 Romani students, former and then-attendants of special schools, represented by the European Roma Rights Centre — submitted an application to ECtHR in 2000.
The Court has declared in 2005 the
application admissible in part on Article 14 (prohibition of discrimination), combined with Article 2 of Protocol No. 1 (right to education)
of the European Convention on Human Rights. The application in part concerning Articles 3 and 6 was declared inadmissible.
In 2006, the Second Section of the Court has found
no violation
in the case, by six votes to one. Judge Costa filed a concurring opinion, agreeing with the majority while saying that "I came to that conclusion only after some hesitation". Judge Cabral Barreto filed a dissenting opinion, finding a violation of Article 14, taken together with Article 2 of Protocol No. 1.
The applicants appealed to the Grand Chamber.

In 2007, the
Grand Chamber has found in the case a violation of Article 14, taken together with Article 2
of Protocol No. 1, by 13 votes to 4. Judges Zupančič, Jungwiert, Borrego Borrego and Šikuta have filed dissenting opinions, finding no violation.
The applicants are a same-sex couple living in Vienna, Austria. On 10 September 2002 they requested the Office for matters of Personal Status (Standesamt) to proceed with the formalities to enable them to contract marriage. By decision of 20 December 2002 the Vienna Municipal Office (Magistrat) refused the applicants’ request. Referring to Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), it held that
marriage could only be contracted between two persons of opposite sex
. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. Since the applicants were two men, they lacked the capacity for contracting marriage.
The
ultimate and final remedy for the applicants was a complaint to the Constitutional Court
(Verfassungsgerichtshof). In this
complaint the applicants alleged that the legal impossibility for them to get married constituted a violation of their constitutional right to respect for private and family life and of the principle of non-discrimination
. (Austria treats the ECHR as part of its own constitutional law. The legal provisions referred to by the applicants were thus those set out in Articles 12, 8 and 14 of the Convention). They argued that the
notion of marriage had evolved since the entry into force of the Civil Code in 1812
. In particular, the
procreation and education of children no longer formed an integral part of marriage. In present-day perception, marriage was rather a permanent union encompassing all aspects of life. There was no objective justification for excluding same-sex couples from concluding marriage, all the more so since the European Court of Human Rights had acknowledged that differences based on sexual orientation required particularly weighty reasons. Other European countries either allowed same-sex marriages or had otherwise amended their legislation in order to give equal status to same-sex partnerships.
On 12 December 2003 the Constitutional Court dismissed the applicants’ complaint. The relevant parts of its judgment read as follows: “Neither the principle of equality set forth in the Austrian Federal Constitution nor the European Convention on Human Rights (as evidenced by “men and women” in Article 12) require that the concept of marriage as being geared to the fundamental possibility of parenthood should be extended to relationships of a different kind. (...) The
fact that same-sex relationships fall within the concept of private life and as such enjoy the protection of Article 8 of the ECHR – which also prohibits discrimination on non-objective grounds (Article 14 of the ECHR) – does not give rise to an obligation to change the law of marriage
. It is unnecessary in the instant case to examine whether, and in which areas, the law unjustifiably discriminates against same-sex relationships by providing for special rules for married couples. Nor is it the task of this court to advise the legislature on constitutional issues or even matters of legal policy. Instead, the complaint must be dismissed as ill-founded.”[2]
"The Court notes that Article 12 grants the right to marry to
“men and women”
Furthermore, Article 12 grants the right to found a family. The applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa. The Court observes that, looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women. However,
in contrast, all other substantive Articles of the Convention grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate
. Moreover, regard must be had to the
historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex

As a subsidiary argument, the
applicants complained under Article 14 taken in conjunction with Article 8 of the Convention that they had been discriminated against on account of their sexual orientation
, since they were denied the right to marry.
Addressing this part of the complaint, the ECtHR pointed out the following:
"Insofar as the applicants appear to contend that, if not included in Article 12, the right to marry might be derived from Article 14 taken in conjunction with Article 8, the Court is unable to share their view. It reiterates that the
Convention is to be read as a whole and its Articles should therefore be construed in harmony with one another. Having regard to the conclusion reached above, namely that Article 12 does not impose an obligation on Contracting States to grant same-sex couples access to marriage, Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either
.

he Court cannot but note that there is an e
merging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes
(..)

Obiter dictum on homosexual relations to be considered a form of "family life"
The
Court, for the first time, has accepted homosexual relationships as a form of "family life"
. The statement runs as follows:
"...the Court’s case-law has only accepted that the emotional and sexual relationship of a same-sex couple constitutes
“private life”
but has not found that it constitutes “family life”, even where a longterm relationship of cohabiting partners was at stake. In coming to that conclusion, the Court observed that despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, given the existence of
little common ground between the Contracting States, this was an area in which they still enjoyed a wide margin of appreciation.
(...) The Court notes that (...) a
rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples (see above, paragraphs 27-30). Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family”
(...).
In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would."
The applicant, Christine Goodwin, a United Kingdom national born in 1937, is a
post-operative male to female transsexual
.

The applicant claimed that she had problems and faced sexual harassment at work during and following her gender re-assignment. Most recently, she e
xperienced difficulties concerning her national insurance (NI) contributions.
As l
egally she is still a man, she has to continue to pay NI contributions until the age of 65. If she had been recognised as a woman, she would have ceased to be liable at the age of 60 in April 1997
. She has had to make special arrangements to continue paying her NI contributions directly herself to avoid questions being raised by her employers about the anomaly. She also alleged that the
fact that she keeps the same NI number has meant that her employer has been able to discover that she previously worked for them under another name and gender, with resulting embarrassment and humiliation
.
Although the
applicant had undergone gender re-assignment surgery provided by the national health service and lived in society as a female, she remained for legal purposes a male. This had effects on her life where sex was of legal relevance, such as in the area of pensions, retirement age etc. A serious interference with private life also arose from the conflict between social reality and law which placed the transsexuals in an anomalous position in which they could experience feelings of vulnerability, humiliation and anxiety
. Though there were no conclusive findings as to the cause of transsexualism, the Court considered it more significant that the
condition had a wide international recognition for which treatment was provided
. It was not convinced that the inability of the transsexual to acquire all the biological characteristics took on decisive importance. There was
clear and uncontested evidence of a continuing international trend in favour of not only increased social acceptance of transsexuals but also of legal recognition of the new sexual identity of post-operative transsexuals
. There was no material before the Court to show that third parties would suffer any material prejudice from any possible changes to the birth register system that might flow from allowing recognition of the gender re-assigment and it was noted that the Government were currently discussing proposals for reform of the registration system in order to allow ongoing amendment of civil status data.
the Court emphasised that the
very essence of the Convention was respect for human dignity and human freedom.
Under Article 8 of the Convention in particular, where the n
otion of personal autonomy was an important principle underlying the interpretation of its guarantees, protection was given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings.
In the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society could no longer be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved

The Court
considered that the lack of legal recognition of the change of gender of a post-operative transsexual lay at the heart of the applicant's complaints under Article 14 of the Conventio
n.
This case concerned complaints by a Russian g
ay-right activist about repeated rejections by the Moscow authorities to his request to organise gay-pride parades
. Despite cooperating with law-enforcement authorities in ensuring safety and respect for public order,
organisers were refused the right to hold the marches.
The mayor's office justified this decision with the
need to protect public order, health, morals and rights and freedoms of others
. It was specified that, because numerous petitions had been received against the marches, negative reactions could lead to mass riots. The mayor and his staff were quoted in the media more than once saying that the government of Moscow wouldn't even consider a gay march and called for an active mass media campaign against it.

Mr Alekseyev challenged unsuccessfully in domestic court the decisions not to allow the marches or the pickets. Applications were lodged with the European Court of Human Rights relying on Ar
ticles 11, 13 and 14.
The European Court of Human Rights held, unanimously, that there had been:
A violation of Article 11 (freedom of assembly and association);
A violation of Article 13 (right to an effective remedy);
A violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

Article 11
The Court recalled that the mere
risk of a demonstration creating a disturbance was not sufficient to justify its ban
. The
Moscow authorities had repeatedly failed to adequately assess the risk to the safety of the participants and public order. Instead, by banning the gay pride marches, the authorities had effectively supported groups who had called for the disruption of the peaceful marches
. The Court further noted that the considerations of safety had been of secondary importance for the
decisions of the authorities who had been mainly guided by the prevailing moral values
. The Court stressed tha
t if the exercise of the right to peaceful assembly and association by a minority group were conditional on its acceptance by the majority, that would be incompatible with the values of the Convention
.

Article 13
The Court noted that there had been
no legally binding rule obliging the authorities to decide on the holding of the marches before the dates on which those had been planned. Therefore, there had been no effective remedy available
to Mr Alekseyev that could have provided adequate redress in respect of his complaints.

Article 14
The Court observed that the
main reason for the bans on the gay marches had been the authorities' disapproval of demonstrations which, they considered, promoted homosexuality
. Consequently, the Court found thatMr Alekseyev had suffered discrimination because of his sexual orientation.
Full transcript