Contents - Constitutional Court of Georgia

The European Courtof Human Rights is Fifty. Recent trends in the Court’s jurisprudence
In all these judgments the Court has established a clear link between combating racism
and the furtherance of a vision of society based on respect for diversity. Starting from the
principle that “racial discrimination is a particularly odious form of discrimination” 97 and
that “racial violence is a particular affront to human dignity” 98 it clearly states that in view
of its perilous consequences it “requires from the authorities special vigilance and a vigorous
reaction” 99 .
Furthermore, geared towards securing a better recognition of equality, the 12 th Protocol
to the European Convention on Human Rights, opened to the signature of the States, in
Rome, in November 2000, on the occasion of the anniversary of the Convention, is in itself
symbolic. This new protocol contains a general equality and non-discrimination clause. It
came into force on 1 st April 2005 and now applies for the 17 countries which have ratified it.
Article 17. Prohibition of abuse of rights
Saint-Just proclaimed “no freedom for the enemies of freedom”, or again, to take up the
comment by J. Rawls, “justice does not require that men must stand idly by while others
destroy the basis of their existence ”100 . In this respect, Article 17 is aimed at “withdrawing
from those who wish to use the Convention’s guarantees the benefit of those rights because
their aim is to challenge the values that the Convention is protecting ” .
The Court has given its opinion on the dangers that threaten democracy. Here I am thinking
about decisions and judgments in which the protection of the Convention has been
refused, in matters such as racist, negationist or revisionist speeches, or appeals to uprising
or violence. In a couple of cases the Court applied Article 17 of the Convention, finding that
the applicants could not rely on, respectively, Articles 10 and 11.
The Court used Article 17 boldly for the first time in the inadmissibility decision of 24
June 2003 in Garaudy v. France 101 . Where the French philosopher (formerly with Marxist
leanings) had made revisionist statements, the Court took the view that the applicant was
using “his right to freedom of expression for ends which are contrary to the text and spirit
of the Convention”. In the Norwood v. the United Kingdom decision of 16 November 2004,
in which the applicant complained that he had been compelled to remove from his window
a flag with the words “Islam out of Britain” inscribed on it, the Court applied Article 17 for
the first time in a case of anti-Muslim racism. The W.P. and Others v. Poland inadmissibil-
97 ECtHR, Timishev v. Russia, judgment of 13 December 2005. § 56.
98 ECtHR (GC), Nachova and Others v. Bulgaria, judgment of 6 July 2005, § 145.
99 ECtHR, Timishev v. Russia, judgment of 13 December 2005, § 56; ECtHR (GC), Nachova and Others v. Bulgaria, judgment of 6 July 2005,
§ 145.
100 J. Rawls, A Theory of Justice, Oxford, Oxford University Press, 1971, p. 218.
101 Garaudy v. France, 24 June 2003, D., 2004, p. 239, note by D. Roets; Rev. trim. dr. h., 2004, p. 653, obs. M. Levinet.
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