Advocate Usman Gondal
Advocate Ali Yousaf
The general principle is that not all rights are given same legal status. The courts recognize that no rights are absolute and no one right is more important than another right. When a competing right situation arises/exists, one must recognize that not all the claims will be equal before the law, some claims have been afforded a higher legal status and greater protection than others.
In premise, for example, where the parties to a dispute claim that the enjoyment of a group or individual human rights and freedoms, as protected by the law would interfere with other person’s right or freedom.
Whereas, the courts have margin of appreciation, which should be exercised very carefully by evaluating the situation. Although the courts have not set a clear formula for dealing with the competing rights but legal decisions have identified a number of principles that provide directions on how to deal with those situations.
While balancing the rights the courts have to compare and contrast the rights in question. The legal test that needs to be satisfied for the interference by the state in the derogation of absolute/qualified rights can only be for the following reasons
- Public order
- Public health
- Public morality
- National security
It is strength of International Human Rights that states have the margin of appreciation. Margin of appreciation is not always same, it differ in different cases.
Cases which show the role of court in dealing with competing rights and in particular how the test is examined as follow;
Lautsi v Italy ( Article 9)
Mrs Lautsi brought an action against Italy on behalf of herself and two of her children who were studying at a state school in Italy (Abano Termi). She claimed that Article 9 and Article 2 Protocol 1 should be interpreted in a way “as to imposing an obligation on the state to maintain the absolute religious neutrality within the State Educational System. She concluded that the affixation of a Crucifixes symbol on the school walls was an infringement of the right of freedom of religion of a non-Christian child as well as violation of parental right to have the child educated in conformity with her own philosophical convictions.
It was decided in favor of applicant in ECHR, so Italian Government appealed before the Grand Chamber of ECHR who decided it in favor of the Italy with a majority of 15-2.
Decision of the Grand Chamber:
The GC of ECHR reversed the decision of ECHR lower chamber and concluded that the Italian law was compatible with the ECHR convention and that no violation of the rights of Mrs. Lautsi or her children had occurred.
Reasoning of Grand Chamber of ECHR in decision:-
There was no evidence to prove that the display of crucifixes in the classroom has any actual influence on the pupils or any impact on upon the formation of their religious and philosophical convictions.
Italy is a country of Christian tradition; so Christian symbol may legitimately enjoy greater visibility in society than any other religious symbol.
The decision was also an unprecedented move in contract to Muslim Teacher Veil case decision.
The court ruled that the Crucifixes impact was very limited to restrict the rights invoked. So, there was no interference by the state concerning the right in issue. A lot of other states also defended with Italy as the crucifixes symbol had a historical and cultural importance otherwise than religious purposes in the Europe.
The contracting state enjoys a wide margin of appreciation in determining steps to be taken to ensure the compliance with the convention in respect of needs of the community so Article 2 Protocol 1 cannot be interpreted to mean that the parents can require the state to provide a particular form of teaching.
So, the right of Mrs Lautsi was in line with her own convictions and it was held that the Italian Courts have well stricken a balance between various competing rights.
Von Hannover v Germany: (Article 8)
Hannover was the daughter of Prince Rainier III of Monaco. She was president of certain humanitarian and cultural foundation and represented her family at different openings of festivals but did not represented/performed on behalf of the state of Monaco.
Her photos were taken (related to her private life) by some magazines in Germany. So, she concluded that it was the violation of Article 8 of the Convention. Her appeal was refused by the Federal Constitutional Court as the court contended that the photos which were subject matter of the case were not capable of constituting an infringement of the right to respect her private life.
Article 8 provides, “Everyone has the right to respect for his private life, his home and his correspondence”.
German government contended that it has struck a fair balance between applicant’s right to respect for her private life guaranteed by the Article 8 and freedom of press guaranteed by the Article 10 having regard to the margin of appreciation available to the state. The photos were taken in a secluded place. Moreover, private life of a PAR EXCELLENCE does not require the publication of photos without her own authorization.
Press contended that the role of press as a watchdog could not be narrowly interpreted. There is no uniform standard European standard concerning protection of private life, so the state has wide margin of appreciation in the area.
Decision of ECHR:
Since the applicant was not exercising any official functions, so photos were exclusively related to her private life. The public does not have a legitimate interest in knowing where the applicant was and how she behaves generally in her private life.
For commercial interest of the magazine in publishing the photos, in the instant case, in court’s view is against/infringement of right to effective protection of her private life.
The criteria established by the domestic courts was not sufficient to ensure effective protection of applicant’s right to private life. Despite the state had the margin of appreciation but the German Courts did not strike a fair balance between competing rights. Therefore, there had been a breach of Article 8 of the Convention. The right to private life of a public figure even does not stop at the front door. So, the public does not have the legitimate aim of knowing about the private life of applicant.
Lindon v France:
Lindon was a novelist/writer. In 1998, he wrote a novel, ‘Jean Marie Le Pen on Trial”, about a Front National Militant tried for murdering a Young African man. The novel was published by a company known as OTCHAKOVSKY-LAURENS. Characters in the novel described Le Pen as a chief of a gang of killers and asked whether he was not a vampire who thrives on the blood of his enemies.
At this, Le Pen brought criminal defamation proceedings against the author and publisher company. They were convicted in Paris Criminal Court on the basis of “particularly excessive remarks that appear in the text”.
On November 1999, in Liberation magazine published by Serge July, wrote an article in the form of a petition containing 97 writers protesting against the conviction. The passage contained following lines,
“if those passages are to be considered defamatory in the novel, they are defamatory in reality. I should be sued by Le Pen and convicted by court, if they are true to their own logic, for having reproduced those extracts here”.
Le Pen prosecuted July, the publisher of Liberation for Criminal Libel and the French Courts convicted him for republishing the passage. July said that his right of being heard by an impartial tribunal was violated as two of the three judges were same who sat on the bench which convicted Lindon and the Magazine Publisher.
Decision of the court:
The complaints of the applicants were dismissed and the Grand Chamber of ECHR concluded with the majority 13-4 that there was no violation of the Article 6 of the ECHR Convention 1950.
The penalty imposed by the domestic courts was proportionate. Although there was little scope under Article 10(2) for restrictions on freedom of expression in the area of political speech and the limits of criticism were wider for politicians rather than ordinary individual but the national courts were entitled to take the view that there could be some limits as to what could be published by imposing a minimum degree of moderation. The interference with the rights of three applicants was necessary in the best interest of a democratic society.
July’s claim of impartiality of judge was not objectively justified as the facts and legal issues in both the cases were different. So, it does not pre-supposes any guilt on July. [Stephen was in against the decision because margin of appreciation was narrow as Le Pen was a politician].
Refah partisi v Turkey: (Article 11)
Refah Partisi, the welfare party, a political party claimed that its dissolution by the Turkish Constitutional Court is a breach of its right to freedom of expression under ECHR Convention 1950 Article 11. Refah was set up in 1983 and in 1996 it was able to form a coalition government with another party.
In 1997 Turkey’s state counsel successful applied to the Turkish Constitutional Court for Refah Partisi dissolution on the ground that the activities of the party members were contrary to the principles of secularism under the Article 2 of the constitution as the members of the party were trying to establish an Islamic State with the imposition of Sharia Law.
When the Constitutional Courts dissolved the Refah Party, it brought an application before Grand Chamber of ECHR concluding/ arguing that the interference with its right of freedom of expression was contrary to the law as the relevant law was unclear at the time of its dissolution. Moreover, the action was unnecessary as REFAH PARTY had taken no steps towards the institution of Islamic State and the opinion of its members could not be imputed to it.
Decision of the Grand Chamber:
The Grand Chamber of ECHR dismissed the application/claim of the Refah Party and held that the dissolution did not violate the Article 11 of the ECHR 1950. Although there had been an interference but such was prescribed by the law. Although there was some ambiguity on the law at that time but the Constitutional Court had the jurisdiction to resolve the conflict between laws.
The interference with the Refah party’s right was justified as it met the urgent social need to protect the democracy, for which state could take pre-emptive steps where necessary as in this case. The opinion of the members could be imputed to the Refah Partisi as the members were holding senior party positions. The statements, which included the implementation of Sharia Law, were not compatible with the Turkey’s secular democracy. Given the immediacy of threat, the actions of Constitutional Courts in dissolving the Refah Partisi were proportionate, as the Refah Party could have gone for the implementation of the policies, which were a danger to democracy. So, courts have rightly struck the balance between various rights.
In the light of above-mentioned cases, the margin of appreciation in balancing various competing rights is crystal clear. Competing human rights situations will inevitably arise in many different contexts, including workplaces, housing and schools. By following the approach outlined in above case-laws and policies provided by Human Rights organizations, would be helpful to resolve tension and conflict between parties at an early stage. Resolving conflict early helps organizations to address matters before they fester and become entrenched. This in turn helps ensure the health and functioning of an organization, and can avoid costly and time-consuming litigation.