Case Watch: Europe’s Broad View on Acceptable Limits to Free Speech
By Jonathan Horowitz
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
In March 2013, the European Court of Human Rights handed down its judgment in the case of Kasymakhunov and Saybatalov v. Russia. The case is the latest in the court’s jurisprudence on the limits to the protection of the right to freedom of expression when the views expressed are deemed to threaten the other rights and freedoms protected by the European Convention on Human Rights.
Article 17 of the ECHR is often called the “abuse clause”: Rather than granting a protected right, it stipulates that one cannot “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms” of the ECHR. If the Court finds that Article 17 applies, it results in categorical exclusion from protection.
Historically Article 17 has been applied in cases involving Holocaust denial, Nazi propaganda, the Communist Party, and racist hate speech. The recent case and the Hizb ut-Tahrir and Others v. Germany case decided in June 2012 are the first applications of Article 17 to the Islamist group Hizb ut-Tahrir.
In the recent case, the two applicants—one a Russian national and the other an Uzbek national—where members of the group Hizb ut-Tahrir and claimed that their convictions by a Russia court, which arose from their associations with that group, violated their rights under Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression), and Article 11 (freedom of peaceful assembly and to freedom of association with others) of the European Convention on Human Rights. The applicants also claimed a violation of Article 7 (prohibition of the retrospective application of criminal law), and the court found in Saybatalov’s favor on this claim.
This blog, however, focuses on the court’s approach to Article 17, which is very infrequently applied.
With respect to the applicants’ Article 9, 10, and 11 violation claims, the court reviewed Hizb ut-Tahrir written materials, outside assessments of the group, and other indicia to determine the relationship between the applicants’ claims and, as Russia argued, the prohibited activities of Article 17. The court set out its standards for political party freedoms and determined that Hizb ut-Tahrir’s activities fell outside those standards and within the prohibited activities of Article 17. It therefore dismissed the complaint with respect to the alleged Article 9, 10, or 11 violations.
The court supported its decision with references to the 2012 case Hizb ut-Tahrir and Others v. Germany and claims that Hizb ut-Tahrir has made “anti-Semitic and pro-violence statements”; rejects participating in the democratic political process as a means to overthrow non-Muslim governments; proposes to establish a regime which rejects political freedoms, such as, in particular, freedoms of religion, expression and association; intends to introduce a plurality of legal systems with different rights and freedoms afforded depending on religion; and intends to set up a regime based on sharia, which the court has found to be incompatible with the fundamental principles of democracy.
The court also emphasized that Hizb ut-Tahrir’s activities “are not limited to promoting religious worship and observance in private life of the requirements of Islam. They extend outside the sphere of individual conscience and concern the organisation and functioning of society as a whole. Hizb ut-Tahrir clearly seeks to impose on everyone its religious symbols and conception of a society founded on religious precepts.”
The court, inter alia, maintained its past rulings (see here and here) that sharia is inherently incompatible with democracy and that the proselytizing of Islam outside of private spheres carries with it the potential of dangerous transformative influence of society as a whole.
It also appears clear from the court’s decision that states may restrict political expression that poses only abstract or far-off harms to democracy or convention rights, apparently without any requirement that the expression is incitement or is directed to produce imminent lawless action. To borrow a line from a U.S. Supreme Court judgment that long ago rejected this approach, the European Court “casts a net across a broad range of associational activities, indiscriminately trapping membership which can be… punished and membership which cannot be so proscribed.”
The European Court’s direct application of Article 17—refusing to entertain arguments on the alleged violations—differs from cases in which it interprets whether restrictions on Articles 9, 10, and 11 are necessary and proportionate to achieve a legitimate purpose, such as protection of public order and protection of the rights of others. The limitation clauses of Articles 9, 10, and 11 allow restrictions on expression only where “necessary in a democratic society.”
By categorically excluding claims under Articles 9, 10, and 11, the court fails to ensure precision in government actions that touch on fundamental freedoms such as the freedom of expression and religion, and denies applicants the opportunity to establish that the restrictions on their rights were not either necessary or proportionate.
Until January 2019, Jonathan Horowitz was a senior legal officer for the Open Society Justice Initiative.