President of the
of Human Rights
the freedoms of expression and association under the European Convention
on Human Rights: Articles 10 and 11
Pierre-Henri Teitgen, often referred to as the father of the European Convention on Human Rights, described the objective of that instrument as ‘’defining the seven, eight or ten fundamental freedoms that are essential for a democratic way of life’’. Indeed we can only fully understand the Convention if we see it from that perspective as a means of preserving the core values of democracy. The essence of human rights protection under the Convention is to be found in the principles of democracy and the rule of law. The rule of law provides the framework for the effective operation of democracy. Democracy without the rule of law is no democracy; the rule of law without democracy is no rule of law, at least as understood in the European Convention and the case-law of the European Court of Human Rights.
So what are those fundamental rights and freedoms ‘’essential for the democratic way of life’’? Of course there are the rights, which respect the physical integrity and dignity of human beings, the sanctity of life in its broadest sense. There are the rights, which guarantee due process in criminal and civil proceedings as well as protection against arbitrary detention. There is the guarantee of respect for family and private life. Then there are the rights and freedoms, which make possible normal and active participation in democratic society, notably the freedom of expression under Article 10 of the Convention and freedom of association under Article 11. It is these two Articles that I would like to consider in this paper. The two Articles are linked. As the Court has observed, the protection of personal opinions, secured by Article 10, is one of the objectives of the freedoms of assembly and association as enshrined in Article 111. Moreover the structure of the two Articles is more or less identical: a first paragraph which broadly defines the freedom protected and a second paragraph which identifies the circumstances in which restrictions may be placed on those freedoms. The Court’s case-law has concentrated on the latter aspect, that is the justification of such restrictions. Its examination of that justification comprises three stages or three tests. Is the measure complained of prescribed by law? Does it pursue one or more of the legitimate aims set out in the provision? And finally is it necessary in a democratic society to attain such aim or aims? It is the third test, which has most often proved decisive.
But first a few more words about the relationship between the Convention and democracy are called for. As it has been interpreted by the European Court the Convention is infused with a profound respect for the democratic process to the extent that it not only recognizes, as I have said, that restrictions on certain fundamental rights may be “necessary in a democratic society” but also that deference should to be accorded to national democratic institutions in determining what is necessary. This notion of subsidiar present either expressly or by implication throughout the Convention is not merely the practical question of the proximity to events of national authorities and the sheer physical impossibility for an international court, whose jurisdiction now covers 44 States with a population of some 800 million inhabitants, to operate as a tribunal of fact. It also embraces a degree of deference or respect. It is not the role of the European Court systematically to second-guess democratic legislatures. It is certainly not equipped to do so. What it has to do is to exercise an international supervision to ensure that the solutions found do not impose an excessive or unacceptable burden on one sector of society or individuals. The democratically elected legislature must be free to take measures in the general interest even where they infringe individual interests and the balancing exercise between such competing interests is most appropriately carried out by the national authorities.
There must however be a balancing exercise and this implies the existence of procedures, which make such an exercise possible. Moreover the result must be that the measure taken in the general interest bears a reasonable relationship of proportionality both to the aim pursued and the effect on the individual interest concerned. In that sense the area of discretion accorded to States, what we in Strasbourg call the margin of appreciation, will never be unlimited and the rights of individuals will ultimately be protected against the excesses of majority rule. This margin of appreciation is a necessary element inherent in the nature of international jurisdiction when applied to democratic States that respect the rule of law. The international judge owes a degree of deference to decisions taken by national democratic institutions in full compliance with the rule of law, and although that deference will never exclude the international review completely, it will call for some measure of judicial self-restraint at international level.
Coming then to Article 10 of the Convention and the freedom of expression: this is where the operation of the mechanism that I have just described is perhaps best observed. The cases show that as the expression gets closer to the core operation of democracy, so the margin of appreciation contracts. Thus it can hardly ever, if at all, be necessary in a democratic society to restrict speech which amounts in effect to participation in public debate on a matter of general interest, even if couched in excessive terms and involving insulting or defamatory language directed at private individuals2. The right to express political ideas and to engage in political activities is so fundamental to democratic society that democratic legitimacy cannot logically be invoked against it.
In the first attempt by the Strasbourg Court to enounce clear principles for the operation of freedom of expression under the European Convention on Human Rights, it made the much repeated ringing declaration that freedom of expression ‘’constituted one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man’’3. This unlimetedly goes back to Article 11 of the French Declaration of the Rights of Man of the Citizen of 1789 which affirmed that the right freely to express one’s opinion was one of the most precious rights of man, ‘’un des droits les plus précieux de l’homme’’. In the Handyside case the European Court continued that this right is “applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population’’. Such were, the Court said, ‘’the demands of the pluralism, tolerance and broadmindedness without which there is no ‘democratic society’’’4.
But how far does such a ‘’right to offend” extend? It seems clear that it does not cover hate speech or incitement to violence5. Nor does the right to offend, as interpreted by the Court in some older cases, appear to protect expression that is regarded as obscene or offensive to the majority moral attitudes of the community concerned6, although there is always European supervision as to what restrictions are necessary in a democratic society. What the right to offend is intended to guarantee is the participation in the democratic process through public debate of questions of general concern. The strength of the protection offered will depend on the extent to which the expression can be linked to the direct functioning of democratic society.
[Mr. Handyside, the applicant in that landmark case, had been convicted and fined after he had published a book aimed at schoolchildren, containing explicit guidance on a number of controversial matters, including sex. He was soon to learn that the right so resoundingly proclaimed by the Court was not unlimited. As I have indicated, the very structure of Article 10 makes it clear that freedom of expression under the Convention was never intended to be as purportedly absolute as in for instance the United States under the First Amendment. I reiterate that under paragraph 2 of Article 10 restrictions on the protected right may be permitted provided that they are prescribed by law, that is that they have a basis in law which must satisfy certain requirements of accessibility and foresee ability; that they pursue at least one of the aims defined by paragraph 2 of the Article; and finally that they be ‘’necessary in a democratic society’’ to attain the legitimate aim or aims identified. Those legitimate aims include ‘’the prevention of disorder or crime, the protection of health or morals, the protection of the reputation and the rights of others’’ or again ‘’maintaining the authority and impartiality of the judiciary’’.
The case of Handyside laid down the leading principles for the application these tests and particulaly those relating to the margin of appreciation. The Court defined the concept of necessity as reflecting a ‘’pressing social need’’. Under the margin of appreciation approach it was for the national authorities to make the initial assessment of that need or, to put it another way, balance the relevant competing interest against that of freedom of expression. Thus the Court recognizes that this is an issue in respect of which State authorities are in principle in a better position than the international judges to give an opinion, as the Court put it, ‘’by reason of their direct and continuous contact with the vital forces of their countries’’7. The Court’s role is a supervisory one, incompressing a determination of whether the interference was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it are ‘’relevant and sufficient’’8. In the Handyside case, the Court reached the conclusion that there had been no violation of Article 10, referring notably to the margin of appreciation.
The freedom of the press occupies a particularly important place in the Court’s case-law under Article 10. The Court has consistently highlighted the role of the press in a democratic society, notably in connection with its duty to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. The Court has stressed the vital function of the press as a ‘’public watchdog’’9.
The Court has thus been at pains to ensure that defamation proceedings are not used to extinguish criticism of public figures and especially politicians.
An early case10 established that politicians were in a special category. An Austrian journalist had criticized the then Chancellor, Bruno Kreisky, for, among other things, his allegedly over-accommodating attitude to former Nazis. He called Kreisky amoral and lacking in dignity. Following a private prosecution, the journalist, was convicted of criminal defamation and fined. Underlining the crucial role of the press in imparting information, the Court rejected the notion accepted by the Austrian courts that information to the reader. ‘’Freedom of the press’’, said the Court in a well-known passage, ‘’affords the public one of the best means of discovering an opinion of the ideas and attitudes of political leaders’’. Freedom of political debate was at the very core of the concept of democratic society, which prevailed throughout the Convention11.
It followed that the limits of acceptable criticism were wider as regards a politician than for a private individual. A politician inevitably and knowingly laid himself open to close scrutiny of his every word and deed. The statements in question were moreover value judgments, the truth of which was not susceptible to proof. The facts on which the applicant had founded his value judgments were undisputed, as was his good faith. Yet there was no defense of fair comment under Austrian law, and so the Court found a violation of the freedom of expression.
The Court has also recognized that although a politician was entitled to have his reputation protected even when he was not acting in his private capacity, the requirements of that protection had to be weighed against the interests of open discussion of political issues12.
The Court has thus distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of a value judgment is not susceptible to proof. Requiring the author of a value judgment to prove the truth of that statement places an impossible burden on him or her and accordingly in itself inringes freedom of opinion13. On the other hand, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exits a sufficient factual basis for the statement. A value judgment without any factual basis to support it may be excessive and thus fail to attract the protection of Article 1014.
Where a journalist had used the word ‘’Trottel’’, which roughly translates as ‘’idiot’’, to describe Mr. Haider, leader of the Austrian Freedom Party, in an article reporting a speech by Mr. Haider, the Austrian courts had taken the view that the mere use of the word was sufficient to justify conviction. The Strasbourg Court observed that the speech in question, in which Haider had stated that all the soldiers who had served in World War II, whatever side they were on, had fought for peace and freedom and had contributed to founding today’s democratic society, was clearly intended to be provocative. The applicant’s article, including his use of the word found to be insulting, could certainly be regarded as polemical, but did not on that account constitute a gratuitous personal attack as the author had provided an objectively understandable explanation derived from Haider’s speech. As such the article and the term used were part of the political discussion provoked by the speech and amounted to an opinion, whose truth was not susceptible of proof. Such an opinion might be excessive in the absence of any factual basis, but this was not the case here15.
A recent Estonian case involved public criticism of the wife of a prominent politician, who had herself been a senior civil servant. Remarks had been published suggesting that she had broken up a marriage and was an unfit and uncaring mother. The applicant was convicted of insulting the woman. The Strasbourg Court noted, among other things, that the woman’s public-figure status was not such as to substantiate the claim that her private life was an issue that affected the public at the time when the interview was published. By then her husband was no longer in government and she had left her post in the civil service. Looking at the way the Estonian courts dealt with the case, the Court found that they had fully recognized the conflict between the right to impart information and the reputation and rights of others and had properly balanced the competing interests. There had been no breach of the Convention requirements16.
This case sets some cautious limits on the operation of freedom of expression in respect of the private life of public figures. It is not every person who has been in the public eye whose private life can be regarded as a matter of public concern.
The Court has taken a rather different approach in relation to public criticism of judges. Thus, while it has accepted that the functioning of the system of justice is undoubtedly a matter of public interest, it has stressed that the judiciary has to enjoy public confidence and that it may prove necessary to protect such confidence against destructive attacks that were essentially unfounded, particularly in view of the fact that judges were subject to a duty of desecration which prevented them from replying17.
[Further proof of the importance which the Court attaches to freedom of the press may be found in a Norwegian case. Here the Court examined the obligations of a journalist in relation to statements of fact. Notably the Court observed that the safeguard accorded to journalists in relation to reporting on issues of general interest was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information according to the ethics of journalism. The case concerned defamation proceedings brought by crew members of a seal-hunting vessel against the newspaper Bladet Tromsø which had published a report of a seal hunting inspector which contained allegedly defamatory accusations. The accusations were statements of fact, for example that seals had been skinned alive, and were based on, or were directly quoting from, the inspector’s report. The newspaper had not conducted its own research. The Court had to consider whether special circumstances dispensed the newspaper from its ordinary obligation to verify facts that were defamatory of private individuals. To determine this, the Court had regard to the nature and degree of the defamation and examined the question in the light of the situation as it presented itself to the newspaper at the time, rather than with the benefit of hindsight after the inspector’s report had been largely discredited. It concluded that the paper could reasonably rely on the official report without being required to carry out its own research into the accuracy of the facts. It saw no reason to doubt that the newspaper had acted in good faith18.
Thus the Court has to place itself in the position of journalists at the material time of publication and assess the justification of publishing in the light of what they then knew or should have known. It is on this basis that it will assess the proportionality of the interference with the legitimate aim pursued. It is true to say that the scales are heavily weighted in favour of the freedom of the press, as this case shows. It is the essential role of a free press in a democratic society, which limits the margin of appreciation or area of discretion available to national authorities in this field.]
Ultimately it is the role-played in democratic society by the expression at issue, which determines the level of protection that will be accorded to it. The importance of the principle of democracy, of democratic society, of the democratic process in the scheme of the Convention cannot be overstated. This is why the emphasis is placed on the contribution to a public debate, on the role of the press, on the active participation in the democratic assimilation of ideas.
It follows logically that where it is the speech concerned that threatens to undermine democracy by inciting to violence, the margin of appreciation accorded to States will be much wider. In a group of thirteen cases concerning Turkey19, the applicants had all been convicted and sentenced to a term of imprisonment and/or a fine after publishing statements or making public declarations linked to the situation in south east Turkey and in particular the Kurdish problem; the charges included disseminating separatist propaganda and encouraging violence against the State.
The Court applied the principles set out in its case-law, stressing the importance of freedom of the press and public debate in a properly functioning democratic society and reiterating the very narrow scope for restrictions on political speech. It noted that the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities, but also of public opinion. In addition, as the Court pointed out, the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticism of its adversaries.
Where there is incitement to violence against an individual or a public official or a sector of the population, State authorities will enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression. It is, moreover, open to State authorities to take measures, and even to resort to the criminal law, where public comments could seriously undermine public order.
In these cases the interference had to be considered on its facts, in particular in the light of the context and content of the impugned statements. In other words the Court had to consider whether the expression in question really did involve a threat to society, in which case a wide margin of appreciation would have operated in the Government’s favour. If the Court failed to find a sufficient link between the words used and a real possibility of resulting violence, the protection offered by the Convention to political speech would prevail. Looking at the facts and all the circumstances the Court took the view that the statements in the majority of the cases which were then before it did not, despite the aggressive language sometimes employed, amount to incitement to violence or armed revolt. The Court also had to determine whether the penalties imposed by the authorities were proportionate in relation to the aims pursued. In fact it was struck by the severity of the sanctions imposed in these cases, typically a jail sentence of some one and a half years and a substantial fine. These considerations led it to conclude in eleven out of the thirteen cases that the interference had been disproportionate and that there had accordingly been a breach of Article 10. In one case, on the other hand, the expressions used were found by the Court to amount to an appeal for bloody revenge by stirring up base emotions and hardening already embedded prejudices which have manifested themselves in deadly violence20. The Court found that this was ‘’hate speech’’ and the ‘’glorification of violence’’, and the interference complained of, in this instance accompanied by a fairly modest fine, was proportionate to the legitimate aim pursued.
[There will clearly always be some tension between the need to take measures to prevent violence, and particularly terrorism, on the one hand, and certain fundamental rights, notably the freedom of expression, on the other. In the field of Article 10 the Court will examine the reality of the threat and the nature and severity of the sanction. The Convention will pull in the direction of democracy and free political speech as an essential component of democracy, but violence being by definition anti-democratic will in principle never attract its protection. Where the reality of the link between speech and violence is established, the speech in question should not do so either21.]
The right to offend, shock or disturb in the case-law of the European Court of Human Rights is a function of democratic society. Contribution to public debate on matters of public concern, even if couched in excessive terms will attract protection and this may also be so where criticism or insulting or defamatory language is directed at private individuals. The competing interest of the right to protection of reputation has so far carried little weight in the balancing process. I believe we must be careful not to take this development too far. With the enormous power and immediacy of the modern media, the potentially devastating effect to public statements reinforces the duties and responsibilities of those making them. While the Court has rightly stressed the potentially chilling effect of placing restrictions on speech that may be offensive to individuals or sectors of the community, genuine debate may also be stifled by over-aggressive and inadequately researched journalism. It also seems to me that the nature of the media has changed since 1986 the Court decided the Lingens case. In the harsh competitive world of the modern media, the emphasis has inevitably shifted from the aim of imparting ideas that further the democratic process to the commercial reality of the need to sell newspapers, advertising space and so on. This truism may perhaps influence the way the judicial balancing of freedom of expression against the different interests which compete with it, and notably the right to reputation, carried out.
I turn now to Article 11, which guarantees the freedom of peaceful assembly and association. As I indicated at the beginning of this paper, the link between this provision and the freedom of expression is a strong one. Thus Article 11 has to be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 1122. The same considerations accordingly apply as to the central role of freedom of expression in democratic society. Again freedom of assembly under Article 11 protects a demonstration that may annoy or give offence to persons opposed to ideas or claims that it is seeking to protect23. The Court has declared that ‘’freedom of thought and opinion and freedom of expression as guaranteed by Articles 9 and 10 of the Convention respectively, would... be of very limited scope if they were not accompanied by a guarantee of being able to share one’s beliefs or ideas in community with others particularly through associations of individuals having the same beliefs, ideas or interests’’24. The term ‘’association’’ moreover has an autonomous Convention meaning; the national law classification will not be decisive in determining whether Article 11 applies25. Article 11 expressly covers the right to form and join trade unions. It also protects a negative right to form and join trade unions. It also protects a negative right, the right not to be compelled to join an association or a trade union26.
But again the essence of the right is be found in active participation in democratic life and the democratic process. One of the principle characteristics of democracy, the Court has held, is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when those problems are irksome. Democracy thrives on freedom of expression in all its forms. From that point of view, there can be no justification for hindering a group solely because it seeks to debate in public the situation of part of the State’s population and to find, according to democratic rules, solutions capable of satisfying everyone concerned27. Restrictions imposed on the formation or activities of associations seeking to take part in democratic debate will be difficult to justify under paragraph 2 of Article 11, which sets out an exhaustive list of legitimate aims in respect of which restrictions may be applied provied that they are necessary in a democratic society to attain those aims. Those exceptions must be strictly construed; only convincing and compelling reasons can justify restrictions on freedom of association28. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned29.
In the light of the above, it can be readily understood that the dissolution of a political party, and therefore the extinction an essential actor in the democratic process, will be difficult to justify in the context of Article 11. There have been a series of Turkish cases concerning just that issue and they have again given the Court the opportunity to stress the primordial place of democracy in the Convention scheme. In United Communist Party of Turkey and Others v. Turkey, the Turkish Constitutional Court had dissolved a political party. The Strasbourg Court established firstly that the freedom of association applied also to political parties as ‘’a form of association essential to the proper functioning of democracy’’ and that freedom extended not only to the founding of the association, but also to its right to engage in activities once formed. The Court resisted an argument by the Government to the effect that a political party regarded by the national authorities as undermining the constitutional structures of the State could never attract the protection of the Convention. Restrictions imposed on such parties had to be compatible with the State’s Convention obligations whether the origin of the restrictions was constitutional or legislative.
The Court underlined that the choice of the name of a political party could not in principle justify a measure as drastic as dissolution in the absence of other relevant and sufficient reasons. The importance of democracy in the Convention system is highlighted. Democracy appears to be, says the Court, the only political model contemplated by the Convention and accordingly the only one compatible with it. Thus the right to form and carry on an association designed to promote political aims and ideas is an area in which the Contacting States enjoy only a limited margin of appreciation. The test under the Convention standards imposed on the various freedoms is one of the necessity in a democratic society and that will be more difficult to satisfy where what is at stake is the right to participate effectively in the democratic process.
In this case the party had been dissolved before it had been able to start its activities, only ten days after it was formed. In these circumstances it is perhaps not surprising that the Court was not persuaded that the immediate and permanent dissolution of the United Communist Party had been necessary in a democratic society. It found on the contrary that this measure, ordered before its activities had even been started and coupled with a ban barring its leaders from discharging any other political responsibility, was disproportionate to the legitimate aim pursued. The fact that the party’s programme referred to the Kurdish problem was not sufficient justification, particularly as it had not in any way advocated violence30.
In the case of Sidiropoulos and Others v. Greece, the national courts had refused to register the applicants’ association. The European Court regarded the proposed association’s aims, namely to preserve and develop the traditions and folk culture of the Florina region, as ‘’clear and legitimate’’ on their face. It could not and did not rule out that once founded a political party or association might under cover of the aims mentioned in its memorandum of association have engaged in activities incompatible with those aims. But that possibility had to be tested against facts, and, as with the Turkish Communist party, the association had not had any time to take action which might have proved or disproved the Government’s allegations. The refusal to register the association was therefore disproportionate.
In a Bulgarian case31 concerning the freedom of assembly, the applicants complained of a ban on meetings organized by them to commemorate certain historical events. The Strasbourg Court did not find evidence that those involved in the organisation of the prohibited meetings had violent intentions. At the same time it recognized that the inhabitants of a region in a country were entitled to form associations to promote the region’s special characteristics. The fact that an association asserted a minority consciousness could not in itself justify interference with its rights under Article 11. An essential factor was whether there had been a call for violence. The Court noted that in the case before it there was no real foreseeable risk of incitement to violence or any form of rejection of democratic principles. In those circumstances the measures banning the applicants from holding commemorative meetings had not been necessary in a democratic society and were therefore in breach of Article 11.
Once again the protection and strengthening of democracy and the democratic process is central to the Court’s approach. As it stated: ‘’Freedom of assembly and the right to express one’s views through it are among the paramount values in a democratic society. The essence of democracy is its capacity to resolve problems through open debate. Sweeping measures of a preventive nature to suppress freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles - however shocking and unacceptable certain views or words used may appear to the authorities, and however illegitimate the demands made may be - do a disservice to democracy and often even endanger it’’. The Court continued: ‘’In a democratic society based on the rule of law political ideas which challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means’’32.
In a Polish case33, on the other hand, a Chamber of the Court found, in a judgment which is not final at the time of writing34, that the refusal to register an association, which was to be called the ‘’Union of People of Silesian Nationality’’, was proportionate to the legitimate aim pursued, namely the prevention of disorder and the protection of the rights of others. The Court took note of the fact that the applicants could have dispelled the authorities’ doubts by slightly changing the name of their association and by sacrificing or amending a single provision of the memorandum of association, alterations which in the Court’s view would not have prevented the association’s members from achieving the objectives they has set for themselves. It pointed out that democracy and pluralism are, in the nature of things, based on a compromise that requires concessions by individuals and groups of individuals. Most conclusively perhaps, the Court accepted that the association had attempted to circumvent certain provisions of the electoral law, notably those laying down conditions for exemption from the threshold of votes required to participate in the distribution of seats in Parliament. It was reasonable on the part of the authorities to act in order to protect the electoral system which is an indispensable element of the proper functioning of a ‘’democratic society’’ within the meaning of Article 11. Once again the emphasis is on the democracy. Here, unlike the other cases involving refusal to register, the Chamber was satisfied that there were sufficient indications that the association had motives other than those set out in its proposed memorandum of association and that these were capable of affecting the proper functioning of the electoral process. It remains to be seen whether the Grand Chamber will take the same view.
I cannot leave Article 11 without referring to one more case concerning the dissolution of a political party in Turkey. In Refah Partisi and Others v. Turkey35 a Chamber of the Court concluded that the grounds cited by the Turkish Constitutional Court to justify Refah’s dissolution were relevant and sufficient and that the interference complained of was necessary in a democratic society. Refah had, so the Chamber found, declared their intention of setting up a plurality of legal systems and introducing Islamic law and had adopted an ambiguous stance with regard to the use of force to gain power and retain it. The case has now been referred to the Court’s Grand Chamber of 17 Judges, and so will be reheard. I can say nothing that would prejudge that rehearing, but we can still look at the general principles enounced. These were that democracy and the rule of law have a key role to play in the integrated system for the protection of human beings set up under the Convention. Only institutions created by and for the people may be vested with the powers and authority of the State; written law must be interpreted and applied by an independent judicial power. There can be no democracy where the people of a State, even by a majority decision, waive their legislative and judicial powers in favour of an entity which is not responsible to the people it governs, whether it is secular or religious. There is a very close link between the rule of law and democracy. As it is a function of written law to establish distinctions on the basis of relevant differences, the rule of law cannot be sustained over a long period of time if persons governed by the same laws do not have the last word on the subject of their content and implementation. I would add, as I suggested earlier, nor can democracy be sustained over a long period of time without the effective operation of the rule of law.
The competent Chamber accepted that a political party might campaign for a change in the law or the legal and constitutional basis of the State on two conditions: first that the means used to that end must in every respect be legal and democratic and, second, that the change proposed must itself be compatible with fundamental democratic principles. It followed that a party whose leaders incited recourse to violence or proposed a policy that did not comply with one or more of the rules of democracy or was aimed at the destruction of democracy and infringement of the rights and freedoms granted under democracy could not lay claim to the protection of the Convention. Again we must await the Grand Chamber’s judgment to see whether this approach is confirmed.
Whatever the outcome in the different cases pending before the Court’s Grand Chamber, it seems to me clear that the Convention in general, and the freedoms of expression and association in particular, can only be understood when seen in the context of a fully democratic society. Human rights as we understand them in Strasbourg have no existence outside democracy. Human rights law must therefore not only reinforce the effective operation of democracy, it must also preserve democracy from attack, whether the threat comes from government or other sources. Articles 10 and 11 of the Convention enshrine rights that are fundamental to the daily functioning of democracy and democratic society. Their exercise as part of ordinary democratic life therefore attracts a high level of protection, but they cannot be invoked to undermine democracy, notably in connection with the use of violence.