Rights and Wrongs under the ECHR The prohibition of abuse of rights in Article 17 of the European Convention on Human Rights 1st Edition by Paulien De Morree 1780684185 9781780684185

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ISBN 10: 1780684185 

ISBN 13: 9781780684185

Author: Paulien De Morree

The prohibition of abuse of rights in Article 17 of the European Convention on Human Rights (ECHR or Convention) embodies one of the Convention’s main principles: its commitment to democracy and democratic values. The provision aims to prevent groups and individuals from successfully invoking fundamental rights and freedoms to justify anti-democratic activities. At the same time it is also one of the Convention’s most controversial provisions. There exists a certain tension between human rights protection and the concept of abuse of rights. While human rights essentially aim to promote freedom by affirming the basic rights and freedoms citizens enjoy vis—vis state authorities, the abuse clause primarily aims to protect the democratic organisation of the state against groups and individuals invoking these rights with the aim of undermining it. Furthermore, an analysis of the growing body of case law on this topic shows that the interpretation and application of Article 17 ECHR are far from unequivocal. While according to Article 17 ECHR anti-democratic activities may be excluded from the protection of the Convention, clear criteria for determining which activities fit this description are lacking. In addition, the case law covers different methods of application of the abuse clause that seem to be used rather arbitrarily. This has resulted in a rather obscure and inconsistent case-by-case approach. This study seeks to shed light on the prohibition of abuse of rights in Article 17 ECHR in order to contribute to a more coherent interpretation of this provision. To that aim it studies the abuse clause from different perspectives. First, it looks at the historical background of the provision to examine what motivated the drafters to include this prohibition. Then it moves on to the case law of the European Commission of Human Rights and the European Court of Human Rights and to legal doctrine, revealing the difficulties and inconsistencies in the current interpretation of the abuse clause. Next, it analyses the interpretation of prohibitions of abuse in other human rights documents to see whether parallels can be drawn with the interpretation of Article 17 ECHR. Subsequently, it addresses the concepts of ‘abuse of rights’ and ‘militant democracy’ and examines the extent to which they offer a framework for understanding the abuse clause. Based on the insights obtained from these different perspectives, this study puts forward a proposal as to how Article 17 ECHR can best be applied in the future.

Table of contents:

Chapter 1 Introduction

1.1 Rights and wrongs under the ECHR
1.2 Problem definition and research questions
1.3 Research structure and methodology
1.3.1 The current interpretation of Article 17 ECHR
1.3.2 Exploring potential solutions to the current controversies
1.3.2.1 Other abuse clauses in human rights law
1.3.2.2 The concept of abuse of rights
1.3.2.3 The concept of militant democracy
1.3.3 Towards a more consistent approach to the interpretation of Article 17 ECHR
1.4 Legal research on Article 17 ECHR
1.5 Focus on the ECHR
1.6 Terminology
1.7 Structure of this book

Chapter 2 The Creation of the European Convention on Human Rights

2.1 Introduction
2.2 First steps by the European Movement
2.3 The work of the Consultative Assembly
2.4 Final decisions by the Committee of Ministers
2.5 The signing of the Convention
2.6 Conclusions

Chapter 3 The Strasbourg Case Law on Article 17 ECHR

3.1 Introduction
3.2 The scope of application of Article 17 ECHR
3.3 Article 17 ECHR invoked vis-à-vis a State Party
3.4 Article 17 ECHR applied vis-à-vis groups and individuals
3.4.1 Revisionist speech
3.4.1.1 Early Commission cases regarding Holocaust denial
3.4.1.2 Garaudy v. France
3.4.1.3 Witzsch v. Germany
3.4.1.4 Broad interpretation of Article 17 ECHR with regard to Holocaust denial
3.4.1.5 The Court’s approach to other historical debates
3.4.1.6 Perinçek v. Switzerland
3.4.1.7 Restrictive application of Article 17 ECHR to other historical debates
3.4.2 Promotion of totalitarian ideologies
3.4.2.1 Kühnen v. Germany
3.4.2.2 Fáber v. Hungary
3.4.2.3 Communist ideology
3.4.3 Hate speech
3.4.3.1 Hate speech excluded from the protection of the Convention
3.4.3.2 Hate speech dealt with under the scope of the right to freedom of expression
3.4.4 Incitement to violence
3.4.5 Challenges to the notion of secularism
3.4.6 Paksas v. Lithuania
3.5 Conclusions

Chapter 4 The Interpretation of Article 17 ECHR in Legal Doctrine

4.1 Introduction
4.2 Different addressees of Article 17 ECHR
4.3 The relation between the two norms in Article 17 ECHR
4.4 Does Article 17 ECHR impose a positive obligation on states?
4.5 The relation between Article 17 ECHR and other provisions in the Convention
4.5.1 Which rights are eligible for the application of Article 17 ECHR?
4.5.1.1 Rights and freedoms that can be abused
4.5.1.2 Rights and freedoms that cannot be abused
4.5.2 Derogations in time of emergency
4.5.3 The prohibition of an abuse of the right to individual petition
4.6 Methods of application of Article 17 ECHR
4.6.1 (i) Direct application of Article 17 ECHR
4.6.2 (ii) Indirect application of Article 17 ECHR
4.6.3 (iii) Article 17 ECHR could have been, but was not applied
4.6.4 (iv) The facts in the case were not sufficiently serious for Article 17 ECHR
4.7 Criticism of Article 17 ECHR
4.7.1 Restrictions in the name of protecting fundamental rights and democracy
4.7.2 The inconsistent interpretation of Article 17 ECHR
4.7.3 Marginal balancing exercise under the direct application of Article 17 ECHR
4.7.4 The broadening of the scope of Article 17 ECHR
4.8 Conclusions

Chapter 5 Other Abuse Clauses in Human Rights Law

5.1 Introduction
5.2 The Universal Declaration of Human Rights
5.3 The International Covenants on Human Rights
5.3.1 The International Covenant on Civil and Political Rights
5.3.1.1 Case law on the International Covenant on Civil and Political Rights
5.3.2 International Covenant on Economic, Social and Cultural Rights
5.4 The American Convention on Human Rights
5.4.1 Individual petitions under the American Convention on Human Rights
5.4.2 Case Law on Article 29(a) American Convention on Human Rights
5.5 The Charter of Fundamental Rights of the EU
5.5.1 The abuse clause in Article 54 EU Charter
5.5.2 Case Law on Article 54 EU Charter
5.6 Conclusions

Chapter 6 The Concept of Abuse of Rights

6.1 Introduction
6.2 The historical background of the prohibition of abuse of rights
6.2.1 Josserand: relativity and the social function of rights
6.2.2 Criticism of the concept of abuse of rights
6.3 The development of the concept of abuse of rights in different legal traditions
6.3.1 France as the cradle of the concept
6.3.2 Abuse of rights in Germany: reasonableness and fairness in contract law
6.3.3 The absence of the concept of abuse of rights in common law
6.4 The concept of abuse of rights in public law
6.4.1 The prohibition of abuse of rights in public international law
6.4.2 The prohibition of abuse of rights in EU Law
6.5 Provisional observations on the doctrine of abuse of rights
6.6 The prohibition of abuse in human rights law
6.7 Conclusions

Chapter 7 The Concept of Militant Democracy

7.1 Introduction
7.2 The concept of militant democracy
7.3 The introduction of the concept of militant democracy
7.4 Militant democracy put into practice
7.5 Reflections on the implementation of militant democracy
7.5.1 Procedural, substantive, tolerant and militant democracies
7.5.1.1 The procedural model of democracy
7.5.1.2 The substantive model of democracy
7.5.1.3 Tolerant and militant democracies
7.5.2 Militant democracy as a linear concept
7.5.3 Militant democracy as calculated risk aversion
7.5.4 Different paradigms for militant measures
7.5.4.1 Militant democracy as anti-extremism
7.5.4.2 Militant democracy as banning the former ruling party
7.6 Criticism of the concept of a militant democracy
7.6.1 Complexities of intolerance and democracy
7.6.2 The risk of abusing militant measures
7.6.3 Stretching the focus of militant democracy?
7.6.3.1 Militant democracy as civic society
7.6.3.2 Decline of democracy and human rights protection?
7.7 Conclusions

Chapter 8 The German ‘Wehrhafte Demokratie’

8.1 Introduction
8.2 The role of Article 17 ECHR in the German legal order
8.3 Militant democracy in Germany: die wehrhafte Demokratie
8.3.1 The drafting of a militant constitution
8.3.2 Wehrhafte Demokratie as adopted by the Federal Constitutional Court
8.4 Article 18 Basic Law as an instrument of the wehrhafte Demokratie
8.4.1 Whoever abuses
8.4.2 Abuse (Missbrauch)
8.4.3 The basic rights liable for abuse
8.4.4 To combat
8.4.5 The free democratic basic order
8.4.5.1 The free democratic basic order equals the elements in Article 79(3) Basic Law
8.4.5.2 The free democratic basic order as a liberal democracy
8.4.6 Forfeiture (Venwirkung)
8.4.6.1 Which rights will be forfeited?
8.4.6.2 Loss of the right itself or merely a loss of the right to exercise it?
8.4.6.3 Is forfeiture a criminal sanction?
8.4.7 The procedure of Article 18 Basic Law
8.4.8 Additional sanctions based on section 39(2) LFCC
8.5 Article 18 Basic Law proceedings before the Federal Constitutional Court
8.5.1 The case law on Article 18 Basic Law
8.5.2 Common elements
8.6 Other ‘wehrhafte’ elements in the German legal order
8.6.1 The party ban in Article 21(2) BL
8.6.2 The prohibition of associations in Article 9(2) BL
8.6.3 Non-constitutional militant measures
8.6.3.1 The German prohibition of Holocaust denial
8.6.3.2 The Irving case
8.6.3.3 Holocaust denial under the German Basic Law and the ECHR compared
8.7 Conclusions

Chapter 9 Militant Democracy in the Context of the ECHR

9.1 Introduction
9.2 The militant interpretation of the European Convention on Human Rights
9.2.1 Militant democracy during the early years of the Convention
9.2.1.1 National Socialism
9.2.1.2 Communism
9.2.2 The Convention’s militant democracy in the context of democratisation
9.2.2.1 Militant democracy as a temporary instrument during transition
9.2.2.2 The continued justification of militant measures against neo-Nazis
9.2.3 Towards a new militant paradigm?
9.3 Balancing the protection of fundamental rights and democracy
9.4 The margin of appreciation with regard to militant measures
9.5 Conclusions

Chapter 10 Conclusions

10.1 Introduction
10.2 Background and interpretation of the abuse clause
10.3 In search of a clarification of Article 17 ECHR
10.3.1 The scholarly interpretation of Article 17 ECHR
10.3.2 Abuse clauses in other human rights documents
10.3.3 The concept of abuse of rights
10.3.4 Article 17 ECHR and the concept of militant democracy
10.3.4.1 The concept militant democracy
10.3.4.2 The ‘wehrhafte Demokratie’ in Germany
10.3.4.3 Militant democracy and the ECHR
10.4 When and how can Article 17 ECHR be applied?

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