scholarly journals LIMITATION OF THE RIGHT TO FREEDOM OF CREATIVITY IN PRECEDENTIAL PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2019 ◽  
pp. 187-200
Author(s):  
Natalya OPOLSKA
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Social Ethics ◽  
State Intervention ◽  
Case Law ◽  
Democratic Society ◽  
Public Morality ◽  
National Minorities ◽  
European Court ◽  
The Right

The article examines the main criteria for the legitimacy of restriction the right to freedom of creation in the practice of the European Court of Human Rights, in particular, legitimacy (legality) – the restriction of the right to freedom of creation should be provided for by international and national legislation, the purpose of which is to restrict the right to freedom of creation to be justified, coherent purpose, consistent with the principle proportionality and not to go beyond the bounds of necessity; content – restrictions on the freedom of creation can not be interpreted expanded, correspond to the basic content of freedom of creation and its social purpose. It has been determined that in the practice of the European Court of Human Rights there are various legal positions regarding the restriction of the right to freedom of creation. In order to streamline the practice of applying the Convention, since compliance with the precedent not only meets the requirements of the independence and impartiality of the Court, but also reflects the very essence of judicial policy, consider the most typical decisions of the ECtHR in complaints about limiting the right to freedom of creation. It is concluded that in each case dealt with by the ECtHR, there are grounds for making a decision both in favor of the complainants and in support of governments for limiting the freedom of creativity. The importance of the above mentioned restrictions on the right to freedom of creativity in the case law of the European Court of Human Rights is that: - first, they relate to pressing issues concerning the restriction of freedom of creation, as the competence of the right to freedom of expression, which is enshrined in Art. 10 of the Convention; - second, in the cases cited above, the ECtHR ruled that convictions were not in these cases in violation of Article 10 of the Convention and supported the position of national courts in interfering with freedom of expression of the arts; - Thirdly, the decision of the ECHR points to the absence of a single international concept of "public morality", from which it can be concluded that it is expedient to determine the general tendencies in the development of modern morals of mankind; - fourthly, the decision of the ECtHR in complaints concerning the restriction of the right to freedom of creativity, which infringes religious feelings of the population, norms of social ethics and morals, provided that the state intervention was carried out with a high degree of conviction in its expediency, the court turns to the side national courts. Relevant restrictions on the freedom of creativity are considered legitimate if they are aimed at preventing neglect of the feelings of national minorities or believers in protecting the most vulnerable categories of the audience (children) if there is a danger that they may have access to this information. However, we are talking about well-considered decisions, since under the same slogans censorship and other undemocratic institutions can be introduced, and here the important point of the ECHR as a guarantor of the Convention is considered. It is determined that in the European legal tradition, the freedom of creativity is closely connected with the restrictions, the need for which must be proved with a high degree of their legitimacy (legality), proportionality and expediency (purpose). The analysis of judgments of the European Court of Human Rights concerning the violation of Article 10 of the Convention made it possible to summarize the case law of the ECHR in the area of restricting the right to freedom of creation and to divide it into three groups, depending on the grounds for interference of the states in the freedom of creativity: Restriction of the right to freedom of creativity in order to protect health; Restrictions on the right to freedom of creativity that are necessary in a democratic society in the interests of national security, territorial integrity or public security, in order to prevent riots or crimes; Restriction of the right to freedom of creativity in order to protect the reputation or rights of others. When restricting the right to freedom of creativity in order to protect the health or morals of others, the case law of the ECtHR recognizes a broad discretion by the states. In resolving the question of the limits of state intervention in order to protect public morality, the Court proceeds from the absence of a single coherent international concept of "public morality". The limits of freedom of creativity are set by the states in accordance with the norms of social ethics and morals. Relevant restrictions on the freedom of creativity are considered legitimate if they are aimed at preventing neglect of the feelings of national minorities or believers, to protect the most vulnerable categories of the audience (children), etc. (“Müller and Others v. Switzerland”, "Handyside v. Great Britain", "Otto Preminger v. Austria"). The restrictions on creativity in the practice of the ECHR in cases involving encroachments on the democratic foundations of society in the interests of national security, territorial integrity or public security, in order to prevent riots or crimes are relatively narrower. The precedent of such decisions in assessing the validity of government actions, their determinants of urgent social need, proportionality and compliance with the legitimate aim. When interfering with the right to freedom of creativity, an analysis of the balance between the restrictions that are necessary in a democratic society and the right to freedom of expression are considered. Summing up the practice of the ECHR concerning restrictions on the freedom of creativity that are necessary in a democratic society.

scholarly journals Internet and freedom of expression in the case law of the European Court of Human Rights

2020 ◽  
Vol 54 (3) ◽  
pp. 1023-1042
Author(s):  
Ljiljana Mijović
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
The Internet ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
And Control

Internet as a means of communication, whatever the type of information it might be used for, falls within the exercise of the right to freedom of expression, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As established in the European Court's case law, freedom of expression constitutes one of the essentials of a democratic society, therefore limitations on that freedom foreseen in Article 10 § 2 of the Convention are to be interpreted strictly. In order to ensure effective protection of one's freedom of expression on the Internet, States bear a positive obligation to create an appropriate regulatory framework, balancing the right to freedom of expression on one and the limitations prescribed in Article 10 § 2, on the other hand. Special attention in doing so is to be paid to the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of other human rights and freedoms guaranteed by the European Convention, particularly the right to respect for private life. While it is the fact that the electronic network, serving billions of users worldwide, will never be subject to the same regulations and control, because of the national authorities' margin of appreciation, the European Court established commonly applicable general principles regarding the Internet as a media of exercising right to freedom of expression.

The right to the protection of religious feelings versus freedom of expression in the light of the Constitution of the Republic of Poland and the European Convention on Human Rights

2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Point Of View ◽  
European Convention ◽  
Constitutional Court ◽  
A Value ◽  
European Court ◽  
The Republic ◽  
The Right

This article concerns the right to the protection of religious feelings as a value which justifies a restriction of freedom of expression. The right to the protection of religious feelings can be protected by three methods: civil, penal and administrative. The issue is discussed from the point of view of the Constitution of the Republic of Poland and the European Convention on Human Rights, with particular emphasis on the case-law of the Polish Constitutional Court and the European Court of Human Rights in Strasbourg.

Jacobs, White, and Ovey: The European Convention on Human Rights

2020 ◽  
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
Political Climate ◽  
European Court ◽  
Forced Labour ◽  
Eighth Edition ◽  
The Right

Seventy years after the founding of the European Court of Human Rights it has dispensed more than 22,000 judgments and affects the lives of over 800 million people. The eighth edition of Jacobs, White & Ovey: The European Convention on Human Rights provides an analysis of this area of the law. Examining each of the Convention rights in turn, this book lays out the key principles. Updated with all the significant developments of the previous three years, it offers a synthesis of commentary and carefully selected case-law, focusing on the European Convention itself rather than its implementation in any one Member State. Part 1 of the book looks at institutions and procedures, including the context, enforcement, and scope of the Convention. Part 2 examines each of the Convention rights including the right to a remedy, right to life, prohibition of torture, protection from slavery and forced labour, and respect for family and private life. Part 2 also examines the freedom of thought, conscience, and religion; the freedom of expression; and the freedom of assembly and association. The rights to education and elections are considered towards the end of Part 2, as are the freedoms of movement and from discrimination. Part 3 reflects on the achievements and criticisms of the Court and examines the prospects and challenges facing the Court in the present political climate and in the future.

scholarly journals Right to freedom of religion and the principle of neutrality of the state in in the case-law of the European Court of Human Rights and the decisions of the Committee of Ministers of the Council of Europe. Ukrainian Perspective and view to the future

2020 ◽  
Vol 3 ◽  
pp. 41-55
Author(s):  
Pavlo Pushkar ◽  
Oleksii Ivanets
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Freedom Of Religion ◽  
Council Of Europe ◽  
Effective Protection ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right ◽  
Collective Dimension

This article suggests a review of the case-law of the European Court of Human Rights and the practices of the Committee of Ministers of the Council of Europe as sources of evaluation of the material and procedural requirements as to the right to freedom of expression. These practices, being synchronised and coherent, are aimed at ensuring implementation of the requirements of the Convention. The right to freedom of expression reflects several aspects of realisation of this right – its realisation as an individual and its collective dimension – together with other persons, or even refusal to exercise a right to freedom of religion. Also, most importantly, the article deals with the requirements of the procedural protection of this right, supplemented guarantees of preventive nature and procedural nature aimed at ensuring effective protection of the right domestically. Such measures include domestic administrative or judicial action. The right to freedom of religion is a right, which integrates some aspects of its subsidiary implementation. In particular, in determining existence of legitimate aim and proportionality of interference with the right to freedom of religion. The article also discusses the relevance of “margin of appreciation” and “proportionality” as elements that influence academic discussions and public criticism of some of the approaches taken by the European Court of Human Rights in assessing compliance of measures taken by the states to limit exercise of freedom of religion.

scholarly journals PROBLEM OF PAYMENT OF COMPENSATION TO BUSINESS OWNERS DURING THE QUARANTINE PERIOD: ANALYSIS OF DOMESTIC AND FOREIGN EXPERIENCE

2021 ◽  
pp. 61-70
Author(s):  
K.H. Nekit ◽  
◽  
◽  
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Private Property ◽  
Human Life ◽  
State Intervention ◽  
Case Law ◽  
The United States ◽  
Business Owners ◽  
European Court ◽  
The Right

The COVID-19 pandemic has had a significant impact in all areas of human life. Many rights have been restricted to prevent the spread of infection. The restrictions on private property rights during the pandemic were not so obvious, but no less significant. The massive closure of restaurants, cafes, cinemas and other crowded places has resulted in significant losses for business owners. The question arose about the admissibility of such restrictions on the rights of owners, as well as the need to compensate for the losses caused. The purpose of this article is to study the criteria developed by international practice under which the restriction of property rights is allowed, and approaches to resolving issues of compensation for losses caused to owners when it is necessary to ensure a balance of private and public interests in Ukraine. In order to understand whether the owners, whose rights were restricted during the pandemic by depriving them of the opportunity to use their property in business, have the right to compensation, the article analyzes the meaning of "possessions" used in the case law of the European Court of Human Rights. It is concluded that future income within the meaning given by the European Court of Human Rights should also be considered a type of property, so depriving owners of the opportunity to receive income could to some extent be considered as confiscation of property. This approach suggests that during the quarantine the owners were in a sense deprived of property, which raises the question of the need to compensate the owners for the losses incurred during the quarantine measures. The right of owners to compensation is analyzed in the light of the conditions developed in the practice of the European Court of Human Rights for interfering in the peaceful possession of property and the recommendations developed by the United Nations to limit human rights in the context of the COVID-19 pandemic. It is concluded that it is necessary to comply with the principle of legality in case of state intervention in the peaceful possession of property. However, this principle was violated in Ukraine, as the restrictions were introduced not by law, but by the Resolution of the Cabinet of Ministers of Ukraine. This gives grounds to challenge the actions of the state and demand payment of compensation for losses incurred by the owners. The article also analyzes approaches to resolving issues of compensation for losses caused to owners as a result of restrictions on their rights, developed in the case law of the United States and Great Britain.

scholarly journals Cultura (derecho de acceso a la) = Culture (the Right to access to)

2019 ◽  
pp. 264
Author(s):  
Mar Antonino de la Cámara
Keyword(s):  
Human Rights ◽  
Theoretical Approach ◽  
Freedom Of Expression ◽  
Case Law ◽  
Derechos Humanos ◽  
European Court ◽  
Artistic Freedom ◽  
The Right ◽  
Right Of Access

Resumen: El doble objetivo de esta voz es: a) concretar el contenido jurídico del derecho de acceso a la cultura, para lo que se procederá a b) analizar la jurisprudencia más paradigmática del Tribunal Europeo de Derechos Humanos en relación con la protección de expresiones culturales. No se trata, pues, de una aproximación teórica a lo que sea cultura, sino de precisar, en la medida de lo posible, el alcance de un derecho poco estudiado dentro del marco geográfico europeo.Palabras clave: Derecho de Acceso a la Cultura, Derecho a la Cultura, Derecho a la Libertad de Expresión, Libertad de creación artística, Tribunal Europeo de Derechos Humanos, Copyright Abstract: This voice has been written with a double objective, namely a) to concretize the legal content of the right of access to culture, so we will proceed  b) to analyze some of the most paradigmatic case-law of the European Court of Human Rights in relation to the protection of the culture. Therefore, it is not a theoretical approach to what is culture, but to specify the scope of a right so unstudied within the European geographical framework.Keywords: Right of Access to Culture, Right to Culture, Right to Freedom of Expression, Right to artistic freedom, European Court of Human Rights, Copyright.

Circumnavigating the Conflict between the Right to Reputation and the Right to Freedom of Expression

2017 ◽  
Author(s):  
Leto Cariolou
Keyword(s):  
Human Rights ◽  
Free Speech ◽  
Freedom Of Expression ◽  
Case Law ◽  
Protective Measures ◽  
European Court ◽  
Key Features ◽  
The Right

This chapter analyses key features of the purported conflict between the right to free speech and the right to reputation in the context of the case law of the European Court of Human Rights. The chapter addresses two questions. How can it be that the right to free speech and the right to reputation co-exist as equal, when they can require directly opposite results or protective measures? Second, how can the seemingly inescapable conflict between them be principally reconciled without leading to inconsistent outcomes, depending on how the claims on which they are grounded are framed and adjudicated? The chapter argues that, in adjudicating defamation cases, the ECtHR employs in principle substantive reasoning aimed at delineating or defining the content of both rights, which effectively circumnavigates the conflict between them. Thus the limits of freedom of expression are set where protection of the right to reputation begins; and vice versa.

scholarly journals FREEDOM OF EXPRESSION AND THE RIGHT TO RESPECT FOR PRIVATE LIFE

2021 ◽  
Vol 70 (4/2020) ◽  
pp. 249-265
Author(s):  
Goran Ilic
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
European Court ◽  
The Right ◽  
The Relationship

The paper analyzes the relationship between freedom of expression and the right to respect for honour and reputation. It was pointed out the importance that is given to freedom of expression nowadays, and it was especially considered the practice of the European Court of Human Rights. On that occasion, the difference that exists between public and private personalities was pointed out, as well as the doubts that may arise from the distinction between factual statements and value judgments. When it comes to the right to privacy, the author referred to the importance of honour and reputation, and on that occasion reminded of the “double” presence of these values. In one case it is Art. 10 of the European Convention on Human Rights, and in another the case law of the European Court of Human Rights regarding the meaning of the term of the right to privacy from Art. 8 of the European Convention on Human Rights. Solutions in domestic law and case law are analyzed, and special attention is paid to one case in which the relationship between freedom of expression and violation of honor and reputation was discussed. The specificity of this situation is reflected, inter alia, in the fact that we are talking about university professors. The author used the normative, comparative and historical method when writing the paper.

scholarly journals THE PROTECTION OF THE RIGHT TO FREEDOM OF EXPRESSION: A PANORAMA OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS CASE LAW / A PROTEÇÃO DO DIREITO À LIBERDADE DE EXPRESSÃO: UM PANORAMA DA JURISPRUDÊNCIA DA CORTE INTERAMERICANA DE DIREITOS HUMANOS

2016 ◽  
Vol 16 ◽  
pp. 51-68
Author(s):  
Naiara Posenato
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Press Freedom ◽  
System Protection ◽  
European Court ◽  
Protection Of Human Rights ◽  
Democratic Systems ◽  
The Right ◽  
Special Protection

The Inter-American system for the protection of human rights recognizes the importance of freedom of expression for democratic systems. The analysis of the Inter-American Court of Human Rights (IACtHR) case law shows that it is probably the regional framework that provides the greatest scope and the broadest guarantees of protection to the right to freedom of thought and expression. Based on American Convention on Human Rights and on other relevant legislative instruments and, above all, in light of their prevailing interpretation by the aforementioned Court, this brief analysis is intended to clarify, with some comparative insights, the main features and the peculiarities of the regional system protection of the right to freedom of expression. In particular, it will consider the types of speech deserving special protection due to their importance for the exercise of other human rights or for the maintenance and the strengthening of democracy and, by contrast, the conditions according to which restrictions to freedom of expression are admitted by the Inter-American system.Keywords: Freedom of expression. Press freedom. Inter-American Court of Human Rights (IACtHR). European Court of Human Rights (ECHR). Case-law. Protected speech. Balacing human rights. National security.

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