7 months ago


Policing democratic

Policing democratic freedoms Page 95 General considerations: interferences with Articles 8 - 11, European Convention on Human Rights Articles 8, 9, 10 and 11 of the Convention grant individuals certain qualified rights: ffthe right to respect for private and family life, home and correspondence; ffthe right to freedom of thought, conscience and religion; ffthe right to freedom of expression; and ffthe right to freedom of assembly and association. These rights are different from the right to life (Article 2) and the right to freedom from torture and inhuman and degrading treatment and punishment (Article 3) in that, in respect of Articles 8-11, there are clearly-defined situations where they can be the subject of interference by State authorities. However, any interference with these rights must comply with a range of conditions if it is to be justifiable under the Convention. These conditions are: (i) the interference must be in accordance with the law; (ii) it must be in pursuance of a legitimate aim; and (iii) it must be necessary in a democratic society. If the State cannot satisfy any of these conditions, there will be a finding of a violation of a particular provision. It is first necessary to examine the scope of protection available under each guarantee. Respect for private and family life, home and correspondence: Article 8, European Convention on Human Rights Article 8 of the Convention protects the right to respect for private and family life, home and correspondence. It may be relevant in relation to a number of situations concerning policing activities, and has been discussed in respect of the prevention and investigation of crime in the previous chapter. 275 Freedom of thought, conscience and religion: Article 9, European Convention on Human Rights Article 9 protects the right to hold religious and non-religious beliefs, to change those beliefs and to manifest them, whether alone or with others, in public or in private. Both individuals and religious associations enjoy rights 275 See pp. 67-75.

The European Convention on Human Rights and Policing Page 96 under Article 9. Article 9 covers a broad range of beliefs, including pacifism and veganism, as well as traditional beliefs. All of the main religious denominations are covered by Article 9, as well as ones that are less well-known. In addition, certain organisations linked to controversial beliefs (e.g. the Church of Scientology) have been accepted by the Strasbourg Court as coming within the scope of protection afforded by Article 9. The holding of beliefs cannot be interfered with by the State, under any circumstances. No police action can be taken against any person solely because of their beliefs. However, the manifestation of such beliefs may be interfered with in certain circumstances. If the interference is based on an identifiable legal provision, in pursuance of a legitimate aim and necessary in a democratic society, it will be in accordance with Article 9. The arrest and conviction of members of religious groups for proselytization has been considered by the Strasbourg Court. In two cases concerning Greece, the Court held that it must be demonstrated that an attempt had been made to put undue pressure on a person to join the faith in question. This is more likely to be the case where those proselytizing are in a position of authority towards those they are seeking to convert. This is because those they are seeking to convert may fear adverse consequences if they do not allow themselves to be indoctrinated. 276 As well as requiring respect, Article 9 can also require the State to take positive action in certain cases. ■ In Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia, the applicants (members of a religious minority) alleged complaints of illtreatment at the hands of members of the religious majority, and of a failure by the authorities to respond. The Court held that ‘through their inactivity, the relevant authorities failed in their duty to take the necessary measures to ensure that the group of Orthodox extremists … tolerated the existence of the applicants’ religious community and enabled them to exercise freely their rights to freedom of religion.’ 277 Article 9 also has certain implications for the management of police services. If the majority population in a country or territory is of one religion, this may well 276 Kokkinakis v Greece, judgment of 25 May 1993 and Larissis and Others v Greece, judgment of 24 February 1998. 277 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia, judgment of 3 May 2007 at paragraph 134.