4 Conclusion
4.1 Findings and Explanations
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rights. On one hand there was a logical expectation that there should be no hierarchy in the system of human rights covered by the ECHR, because otherwise it would be somewhat a systematic undermining of the idea of equality of human rights. But, on the other hand, there was also an uncertainty about whether the relationship between individual and collective human rights could possibly follow the same logic as the classical understanding of democracy, when the minority has to adjust to the will of the majority. This thesis illustrates that human rights follow different logic, and that the relationship between individual and collective human rights is rather complicated, however there cannot be identified a hierarchy between these groups of human rights.
The power of the individual or collective claim lies in the core value, which they are representing. The Court therefore has to meticulously examine whether its judgment would possibly affect core value and element of someone’s life and existence covered by the ECHR.
Although this thesis focuses in particular on the Article 8 of the ECHR, it has indicated that the situation, when individual and collective rights are contested, is not a single type, but that there are many situations dealing with various issues where can be identified clash of individual and collective human rights. Analogically this relationship could be identified in other conventions and human rights mechanisms.
4.1 Findings and Explanations
As illustrated on examined cases from the European Court of Human Rights, the term "collective human rights" can cover various forms and groupings of people. It can represent "rights of others,"199 for example through preservation of the environment, and the "interest of economic well-being of the country"200 as described
199 Case of Chapman v. The United Kingdom, Application No. 27238/95 (2001). Para 82.
200 Ibid. Para 80.
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in the Chapman v. the United Kingdom, it can be "the pressing social need"201 to protect the morals and vulnerable as discussed in the Dudgeon v. the United Kingdom.
Other identified examples can be positive obligations of the Governments to protect citizens' rights, such as Right to Life202and public security. This particular reasoning was illustrated on the Gillan and Quinton v. the United Kingdom203 and the K. v.
Germany.204 In the first Case, the Government was defending its actions, which were infringing rights of individual, by the necessity to protect its population as a response to the threat of terrorist attacks, which emerged after the 9/11. In the letter Case, the Government wanted to protect citizens from the possible harm caused by recidivist prisoners, by putting them under preventive detention retroactively.
The question of Government's positive obligations toward its citizens was also playing a key role in the Case of V.C. v. Slovakia, where the government was claiming to protect the “health and wellbeing” of the majority population by stripping some of the basic rights from the minorities.205
Regarding the question what are the decisive arguments for the Court to decide whether the "individual" or the "collective" human rights will prevail in the concrete Case, we have to look at the Court proceedings. If there is an applicant claiming his/her rights under the ECHR, the Court follows certain steps to ensure the most favorable decision. After passing the admissibility test of the ECHR206, which means that the Case can be brought up in front of the Court, the actual proceedings and examinations can begin.
201 Case of Dudgeon v. the United Kingdom, Application No. 7525/76 (1981). Para 60.
202 ECHR, Article 2.
203 Case of Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010).
204 Case of K v. Germany, Application No. 61827/09 (2012).
205 Case of V.C. v. Slovakia, Application No. 18968/07 (2011).
206 As described in Chapter 2
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The Court usually follows the typical structure of Articles of the ECHR, in particular Articles 7, 8, 9, 10, and 11, where the first paragraph typically describes concrete rights and the second paragraph further adds under what condition these rights might be constrained. Therefore, in order to proceed, the Court must therefore meticulously analyze the second part to decide whether the interference with such right was justifiable. Regarding the Article 8 of the Convention, after finding that there was an interference with the right covered by the Article, the Court has to further examine, whether this interference was necessary in democratic society, and was in accordance with law. As it was shown on cases selected for this thesis, the aspect of “necessity in democratic society” in particular brings various dilemmas to the Court to decide.
One of the key roles in deciding human rights disputes under the ECHR is the margin of appreciation. The ECHR simply cannot work effectively without incorporating the relatively wide margin of appreciation, because it covers numerous countries, with different religions, history and political situation. On the other hand this wide margin given to States, can lead to very different implementation of rights covered by the ECHR. This situation can be illustrated by the prohibition of religious symbols in public in France on one hand, and the special police uniforms for Muslim women in the United Kingdom. At the first sight contradicting each other, but in reality both States claims that they are protecting the religious rights of all people.
The similar situation can be identified in analyzed cases as well, for example the question of homosexuality and its decriminalization in European countries also describes different attitudes and national laws.207
207 See the Case of Dudgeon v. the United Kingdom analyzed in Chapter 3
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In all of the analyzed cases, the Court had to carefully look at the values represented by each claimant, and had to especially consider what role does such claim plays in particular issue area. To be more precise by looking at cases covered by this thesis, there can be identified an important decisive factor, which influences Court’s decision. To decide, whether the right of individual or of the collective would prevail, the Court needs to analyze the real core of the claimant rights. In the Chapman v. the United Kingdom,208 the Court had to look whether the “travelling”
way of life, characteristic for the Romani minority, is forming the nucleus of being a member of Romani minority, or it is only one of many characteristics forming the complete image of Romani people. Following the decision of the Court, it could be understood that although travelling in caravans might be perceived as a characteristic of Romani people different way of life, however nowadays only few members of this minority are actually following this tradition. Therefore, this issue does not form the bulletproof argument of core importance of this tradition to prevail over the UK’s argument of protecting rights of others through the environmental protection.
In the Dudgeon v. the United Kingdom209, the Court expressed that the way the UK government infringed into private life of the claimant and his basic human needs, such as to form a family and have a relationship, could not be excused by the appeal of Christian morals and the rights of others, because the question of two adult consenting males having sexual intercourse with each other, was not in fact undermining the core ideas of morality and Christian values at all.
In the V.C. v. Slovakia210 the sterilization of applicant, infringed the basic human needs and rights of a person, which are forming the kernel of humanity. For this
208 Case of Chapman v. The United Kingdom, Application No. 27238/95 (2001).
209 Case of Dudgeon v. the United Kingdom, Application No. 7525/76 (1981).
210 Case of V.C. v. Slovakia, Application No. 18968/07 (2011).
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reason arguments of the Slovak government advocating those actions, could not prevail over the really basic rights of the individual.
In Gillan and Quinton v. the United Kingdom211 and the K. v. Germany,212 there are similar arguments representing the “collective” concern. The State in both cases stressed the importance of its positive obligations toward its citizens, to ensure the Right to Life to the majority of population, in the first case protecting people from terrorist attacks, in the latter from dangerous criminals. Both cases were dealing with very serious issues, dealing with the possibility of physical harm or even death.
Therefore many observers could view Court’s decisions as relatively controversial, however, following the logic suggested in this thesis, the Court has rules accordingly.
The potential danger of arbitrariness, represented either by too wide powers of police officers in the first case, or by the courts in the latter case, would, if the Court decided differently, endanger the core idea of the rule of law and democracy as understood under the ECHR.
In the Von Hannover v. Germany213 and Axel Springer AG v. Germany,214 the Court has relatively difficult task to find a boundary between the rights of individual claimant and the collective concern. Following the Court’s decision, we can see that the freedom of press makes the core of the freedom of expression, therefore unless the individual would present a very strong counterargument, the collective concern would prevail. In these two cases, the publications of pictures of publicly well-known individuals did not form this counterargument.
211 Case of Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010).
212 Case of K v. Germany, Application No. 61827/09 (2012).
213 Case of Von Hannover v. Germany (no. 2) [GC] - 40660/08 (2012).
214 Case of Axel Springer AG v. Germany, Application No. 39954/08 (2012).
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In the Lautsi and Others v. Italy,215 the last case examined in this thesis, the Court decided that although crucifix is a symbol of Christianity and therefore representing concrete religion, this does not necessary mean that the presence of such symbol in the classroom would violate individual’s rights to decide its own religion and be educated in secular way. The presence of these objects in classrooms does not force anyone to follow such religion and neither it influences the content of the subjects taught in those classrooms. It does not clash with the core values and understandings of the freedom of religion or the right to education. For these reasons, the presence of these symbols does not create strong argument for the individual’s complaint over the Government’s decision to keep crucifixes in classrooms as a symbol of the values and history Italy has been built on.
Another subject illustrated in this thesis shows that although individual human rights are contesting human rights of the collective, this situation does not necessary mean that the individual is not a member of the collective, or that he or she is against the rights claimed by the collective. This situation could be illustrated on the example of some of the cases analyzed in this thesis. For example in the Chapman v. the United Kingdom, the plaintiff was not against the environmental protection, which would be going the opposite way around and actually harm the applicant together with the others. In the Von Hannover v. Germany, the plaintiff was not attempting to fight against the freedom of expression, which would be actually contra productive and quite ironical at the end. In the Gillan and Quinton v. the United Kindgdom, the plaintiffs were not against the UK Government’s plans of protecting its citizens against the threat of terrorism. Similar understanding could be described on the majority of examined cases of the ECHR.
215 Case of Lautsi and Others v. Italy, Application No. 30814/06 (2011).
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All the selected cases in this thesis address serious issues, which require an attention from public as well as from the administration of each State. These cases prove that although European countries are considered as highly developed not only economically, socially, but also regarding the rule of law, there are still many wrongdoings and offenses against the human rights covered by the ECHR. However, the fact that the European Court of Human Rights examines these cases carefully, and the final judgments often force States to change their policies, signifies that issues regarding human rights receive great deal of attention. The Court’s judgment could not only raise awareness about certain problem, which might be otherwise neglected, it could also serve as a moving force to improve the situation in concrete State, simply because no State would like to be labeled as breaching human rights. Moreover, this situation shows that there exists a mechanism to evaluate actions of States and their compliance with the ECHR, and that there is an institutional framework in which individuals could find support against the wrongdoings of their own country.
Although this thesis analyzes relatively small number of cases from the ECHR, it clearly identifies and describes the existence of the relationship between individual and collective human rights within these cases. Altogether with the analysis of the ECHR and the Article 8, it shows that the judgments made by the European Court of Human Rights, are preceded by the careful examination of facts, other relevant cases, and actual practices in other Member States. Moreover, the Court also takes into consideration advices and opinions expressed by third parties, such as various NGOs, which are familiar, or directly focusing on relevant issue areas.
Lastly, this thesis tried to find the most important elements, which would be considered by the Court on the cases relating to conflicts between individual and collective human rights. In cases, where such relationship could be identified, the
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Court should distinguish the core value of claims each party is presenting. If there was an infringement of individual human rights covered by the Article 8 of the ECHR, it would be necessary to analyze whether such interference could endanger some of the core values of the individual as a human being, or as a member of some group.
Analogically, this reasoning would apply for the collective human rights as well. This factor should be decisive and as the analyzed cases show, Court’s proceedings and judgments follow this logic.
In the Chapman v. the United Kingdom216, the Court found that the travelling way of life, did not form a core value of being a member of Roma minority, therefore the applicant’s argument did not prevail over the rights of others through preservation of the environment. In the Dudgeon v. the United Kingdom217 and V.C. v. Slovakia218, applicants suffered interference into their most basic human rights. Whereas in the first case there was a government’s obstruction of claimant’s right to freely lead own life and live without threat, in the latter case there was a severe interference with applicant’s right to have a family, even based on her race. In these cases the core value of the individual as a human being was violated, therefore applicants’
arguments prevailed at the Court.
In the Von Hannover v. Germany219, Axel Springer v. Germany220, and Gillan and Quinton v. the United Kingdom221, there was a common denominator: the right to privacy. In the first two cases the Court was deciding whether the publication of photos of publicly known individuals without their permission, would infringe their basic human rights as human beings. However, there was not perceived such as
216 Case of Chapman v. The United Kingdom, Application No. 27238/95 (2001).
217 Case of Dudgeon v. the United Kingdom, Application No. 7525/76 (1981).
218 Case of V.C. v. Slovakia, Application No. 18968/07 (2011).
219 Case of Von Hannover v. Germany (no. 2) [GC] - 40660/08 (2012).
220 Case of Axel Springer AG v. Germany, Application No. 39954/08 (2012).
221 Case of Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010).
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serious attack on the core values of their humanity or dignity as in the previously mentioned cases, therefore the Court did not find this argument as convincing as compared to the counterargument representing the collective human rights. In this case the freedom of speech, symbolized by the free press, formed the core value of the freedom of expression, therefore this argument prevailed before the Court. In the Gillan and Quinton v. the United Kingdom222, however, the infringement with claimants’ right to privacy was different and more serious, especially because of the high probability of arbitrariness. The reported actions by government’s administration could be seen as humiliating and endangering human dignity. Hence, the human dignity should be perceived as a core value of individual as a human being.
The question of arbitrariness also played an important role in K v. Germany.223 In this case applicant appealed against arbitrariness and unfair treatment before the law.
The equality before the law should be perceived as another core value, on which the modern society is built. For this reason the equality altogether with previously mentioned dignity, are both mentioned in the Article 1 of the UDHR.224 The Government’s counterargument of the necessity to ensure public safety and protect the “right to life” of other citizens must be understood under the light of this Case.
Indeed, right to live in safe environment, or not to be killed, represents the crucial condition for human being to freely develop and lead own life. But, in this Case the State had other options to ensure public safety and right to life of other citizens, whereas the individual had no other option to face the unequal treatment. This Case also examines the situation, where there could be more core values present, and it is
222 Case of Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010).
223 Case of K v. Germany, Application No. 61827/09 (2012).
224 “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
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on the Court to decide, which one would prevail. In such situation the decisive factor would be the context of each core value.
In the last analyzed case, Lautsi and Others v. Italy225, the Court examined whether the applicants right to freedom of religion and thought was breached.
However, it did not find that State’s actions would confront the core value of these rights. The presence of some religious object in the classroom simply did not classify to be of such significance to influence or endanger the individual’s human rights covered by the Article 9: Freedom of thought, conscience and religion.226
These cases demonstrate that the decisive factor for the Court to issue judgment is not influenced by the existence of either individual or collective human rights concerns. The Court does look at the merits represented in each claim and the possible threat to the core value of specific human right. If there would be such threat, no matter whether the claim was representing individual or collective human rights, this argument would be decisive. However, in the situation, when more core values can be
These cases demonstrate that the decisive factor for the Court to issue judgment is not influenced by the existence of either individual or collective human rights concerns. The Court does look at the merits represented in each claim and the possible threat to the core value of specific human right. If there would be such threat, no matter whether the claim was representing individual or collective human rights, this argument would be decisive. However, in the situation, when more core values can be