We are delighted to welcome this guest post by Rónán Ó Fathaigh. Rónán is a PhD candidate at Universiteit Gent, Belgium, researching the right to freedom of expression and the chilling effect doctrine. Rónán is a graduate of NUI, Galway, and has previously worked as a legal researcher with RTÉ Solicitors’ Office. In January 2011, the First Section of the European Court of Human Rights held in Mouvement Raëlien Suisse v. Switzerland that there had been no violation of the right to freedom of expression where Swiss police authorities had banned a poster campaign by a quasi-religious association. Two section presidents dissented, and in a previous post I pointed to the strong likelihood of the judgment being reconsidered by the Grand Chamber, given the important principles involved. Fast forward to July 2012, and the Grand Chamber has affirmed the chamber judgment by the narrowest of margins, a 9-8 vote.
The applicant association was the Swiss branch of the Raëlien Movement, an international association whose members believe life on earth was created by extraterrestrials. The association sought to conduct a poster campaign, with the posters featuring extraterrestrials, flying saucers, and the words “The message from the extraterrestrials. At last science replaces religion”. The poster also included the website address of the Raëlien Movement.
The police authorities refused permission for the poster campaign on the grounds of public order and morals, and the domestic courts upheld this decision. The Swiss courts held that although the poster itself was not objectionable, because the Raëlien website address was included, the Court had to have regard to documents published on the website. The courts held the poster campaign could be banned on the basis that: (a) there was a link on the website to a company proposing cloning services; (b) the association advocated “geniocracy” i.e. government by those with a higher intelligence; and (c) there had been allegations of sexual offences against some members of the association.
The association made an application to the European Court arguing that the ban on its poster campaign violated its right to freedom of expression under Article 10. The First Section held by five votes to two that there had been no violation of Article 10. The crux of the First Section’s judgment was the Continue reading “Banning Speech in the Public Space: Grand Chamber Agrees”→
Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD(C-411/10) must be a contender for the title. The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law. Continue reading “The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter”→
Today’s Irish Times reports that an Irishman and his wife (an EU citizen) have been granted leave to bring High Court proceedings in an effort to secure an Irish passport for their baby daughter who was born as a result of a surrogacy arrangement with a woman in Ukraine. Leave was granted by Peart J. in an ex parte application yesterday. The baby, who was born in January 2011, is not entitled to Ukrainian citizenship and can lawfully remain in the Ukraine for just 90 days. Without travel documentation, however, she cannot leave and the couple claim that she may be placed in an orphanage if they cannot get her out of Ukraine.
As reported by the Irish Times, the couple have initiated proceedings against the Minister for Foreign Affairs and they are seeking a court order compelling the Minister to issue an Irish passport or emergency travel documentation for their currently “stateless” baby. In the alternative, they seek orders directing the Minister to consider their application for travel documentation and to provide a reasoned decision on that. Furthermore, the couple want a declaration that any failure to answer their application speedily Continue reading “Surrogacy Difficulties”→
We have written about France and the veil several times (see here) but, unfortunately, this issue is not going away. There seems to be a new development every week. Last Wednesday, the French government approved a draft law banning the wearing of garments which cover the face in public spaces. It is clear from the public discourse surrounding its development that the law is aimed at Muslim women who wear the niqab and the burqa. Under the terms of the Bill, women punished for wearing such garments in public would be fined or compelled to undergo citizenship training. Penalties including a term of imprisonment would also be established for those convicted of forcing a woman to wear a veil (though compulsion would be difficult to prove). A six month grace period would apply before the law came into full force and the government aims to work with community and faith groups to ‘persuade’ individuals who support women’s wearing of face veils that a ban is legitimate. Some questions remain as to whether these provisions can be enforced. For example, the French police union Alliance has expressed skepticism about its members being required to enforce any new ban.
On International Women’s Day, the EU Commissioner for Human Rights, Thomas Hammarberg released a viewpoint which argued against restrictions on women’s religious dress. He stated that:
Those who have argued for a general ban of the burqa and the niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made proposals in such a direction even less convincing. Nor has it been possible to prove that these women in general are victims of more gender repression than others. Those who have been interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress themselves as they do. There may of course be cases where they are under undue pressure – but it is not shown that a ban would be welcomed by these women.
Hammarberg seems to be in something of an unfashionable minority.In the past fortnight, three significant stories have broken about the regulation, in France, Belgium and Quebec, of the niqab and burqa worn by some Muslim women.