1 November 2007Maria Lundberg, NCHR1 HUMR 5503: Human Rights and Counter- Terrorism Limitations National security and Public order

1 November 2007Maria Lundberg, NCHR2 Limitations to human rights Express limitation to human rights: 1.The text excludes certain conduct – Art. 2.2 ECHR (life) 2.Limitations on certain conditions 3.Derogations in times of public emergency - Art. 15 ECHR and Art. 4 ICCPR 4.Reservations – Art. 57 ECHR, Vienna Convention on the Law of Treaties Art. 19

1 November 2007Maria Lundberg, NCHR3 Permissible limitations A balance between the interests of the community and the interests of the individual ”The relationship between human rights and public interests exceptions is one of the most important issues in contemporary human rights jurisprudence. Not only is the interpretation given to exceptions a key determinant of the utility of rights in practice, but this is also the area in which the political or value-laden natire of the chouices facing the court is most obvious, raising questions as to the legitimacy of judicial rather than democratic decision-making” (McHarg, A. ”Reconciling Human Rights and the Public Interest: Conceptual Problems..”, MLR, Vol. 62 (1999), p. 695)

1 November 2007Maria Lundberg, NCHR4 Limitations Only those expressly authorized by the text are allowed The purpose should be prescribed: Art. 18 ECHR: ”the restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescibed”

1 November 2007Maria Lundberg, NCHR5 Interpretation Strict – narrow -interpretation: “It follows from the nature of paragraph 2 of article 10 as an exception clause that this provision must, according to a universally accepted rule, be strictly interpreted. This is especially true in the context of the Convention the object and purpose of which is to safeguard fundamental human rights. Strict interpretation means that no other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions, and these criteria, in turn, must be understood in such a way that the language is not extended beyond its ordinary meaning” (Golder v. the United Kingdom, Judgment of 21 February 1975, Ser. A, No.18,para. 44)

1 November 2007Maria Lundberg, NCHR6 Limitations ECHR: Including: National security/public order 1.Private and family life: Art. 8 2.Freedom of thought, conscience and religion: Art Freedom of expression: Art Freedom of Assembly and association: Art Freedom of movement: Art. 2 Protocol 4 6.Procedural safeguards relating to expulsion of aliens: Art.1.2 of Protocol 7 Other or broader: 1.Political activity of aliens: Art. 16 (not in ICCPR) 2.Protection of property: art. 1 Protocol 1 (not in the ICCPR) ICCPR: Including: National security/public order 1.Art. 17, 23 ICCPR : NB. Arbitrary and unlawful in Art Art. 18: NB. Art. 4. (cf. Art. 15 ECHR) 3.Art. 19. NB. Art. 20, ICERD 4.Art. 21 and Art. 22, Trade unions: Art. 8.1.c ICESCR 5.Art.12 ICCPR) 6.Art. 13 Other or broader 1.Privacy, family, home and correspondence: Arbitrary and unlawful in Art Armed forces, the police, administration: 8.2 ICESCR

1 November 2007Maria Lundberg, NCHR7 Limitations Freedom of expression: Art ECHR: 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 and morals, for the protection of the reputation of others, for the preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Freedom of expression: Art ICCPR: ”The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals

1 November 2007Maria Lundberg, NCHR8 Limitations Requirements: 1.Legal basis 2.Legitimate aim 3.Necessary in a democratic society The proportionality of the interference in securing the legitmate aim should be secured

1 November 2007Maria Lundberg, NCHR9 Legal basis ”in accordance with the law” or ”prescribed by law” 1.Basis in national law 2.Accessible 3.Clearl formulation for foreseeability

1 November 2007Maria Lundberg, NCHR10 Legal basis Law. Including adminstrative regulation and common law The law should be clear, accessible, precise and foreseeable ( The Sunday Times, Judgment of 26 April 1979, A.30, para. 49) Clear and precise: ”[It] depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.” (Vogt v. Germany (App /91), Judgment 26 September 1995, para.48) Cf the following judgments: –Steel and others v. the UK, Judgment 23 September 1998, paras.76, 94 –Hashman and Harrup v. the UK, Judgment of 25 November 1999, para. 38.

1 November 2007Maria Lundberg, NCHR11 Legitimate aim Broad formulations, examples: –“national security” –“public safety” –“public order” –“prevention of crimes” –“morals” –“health” –“the reputation of others” –“the economic welfare of the country” –“the prevention of disclosure of information received in confidence” –“the guarantee of the impartiality of the judiciary” Interpreted in light of its ”necessity in a democratic society”

1 November 2007Maria Lundberg, NCHR12 National security and public order Absence of detailed legal definitions Sometimes giving the State a broader ”margin of appreciation” Their interpretation should be conducive to the effective protection of of the rights concerned within a democratic society respectful of the rule of law

1 November 2007Maria Lundberg, NCHR13 Necessary in a democratic society The following requirements: “not synonomous with “indispensable” … neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable”, or “desirable”. ( Silver v. the UK, Judgment of 25 March 1983, A. 61, para. 97). “pressing social need” and ”proportionate to the legitimate aim pursued” (Handyside, Judgment of 7 December 1976, A. 24, paras.48-49; Silver, Judgment of 25 March 1983, A. 61, paras ) “When striking a fair balance between these interests, the Court cannot overlook... the great importance of not discouraging members of the public, for fear of criminal or other sanctions, from voicing their opinions on issues of public concern.” (Barfod, Judgment of 22 February 1989, s.12, para.29)

1 November 2007Maria Lundberg, NCHR14 Necessary in a democratic society “the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a fair balance” and “a fair balance... between the demands of the general interest of the community and the requirements of the individual’s fundamental rights” Sporrong and Lönnroth, A 52, Judgment of 23 September 1982, s. 26, 28, paras. 69, 73; James and others, A 98, Judgment of 21 February 1986, s. 35, 36, 37, paras. 46, 51, 54, 56

1 November 2007Maria Lundberg, NCHR15 Necessary in a democratic society “The reading of a prisoner’s mail to and from a lawyer,..., should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endangers prison security or the safety of others or are otherwise of a criminal nature.” (para.48) The “right to respect for correspondence is of special importance in a prison context where it may be difficult for a legal adviser to visit his client, because as in the present case, a distant location of the prison...” (para. 50) ( Campbell, Judgment of 25 march 1992, A. 233)