Chapter 12

SOME OTHER KEY RIGHTS: FREEDOM OF THOUGHT, CONSCIENCE, RELIGION, OPINION, EXPRESSION, ASSOCIATION AND ASSEMBLY

Learning Objectives

_ To familiarize the participants with some other key rights, namely freedom of thought, conscience, religion, opinion, expression, association and assembly, and their importance in a society that is respectful of human rights in general
_ To illustrate how these freedoms, as well as the limitations attached to the exercise of most of them, are interpreted by the international monitoring bodies
_ To explain the role of judges, prosecutors and lawyers in safeguarding the freedoms dealt with in this chapter

Questions

_ How are the following freedoms protected in the country in which you work:
– freedom of thought, conscience, and religion,
– freedom of opinion and expression, and
– freedom of association and assembly?
_ Are there any particular concerns with regard to the effective implementation of these freedoms in the country in which you work?
_ Are there any groups in the country in which you work that might be particularly vulnerable to violations of one or more of these freedoms?
_ If so, who are they and how may their freedoms be violated?
_ What judicial or administrative remedies exist in the country in which you work for persons who consider themselves to be victims of violations of these freedoms?
_ What role is played by the following freedoms in building, preserving and/or strengthening a democratic society/a society respectful of human rights:
– freedom of thought, conscience, and religion,
– freedom of opinion and expression, and
– freedom of association and assembly?
_ With regard to freedoms whose exercise may be limited: in your view, how can a balance be struck between an individual’s right to exercise those freedoms and a society’s general interest in protecting, for instance, national security, public order, safety, health, morals or the rights and freedoms of others?
_ What can you as judges, prosecutors or lawyers do to protect every person’s right to freedom of thought, conscience, religion, opinion, expression, association and assembly?

Relevant Legal Instruments
Universal Instruments

_ International Covenant on Civil and Political Rights, 1966
_ International Covenant on Economic, Social and Cultural Rights, 1966
_ International Convention on the Elimination of All Forms of Racial Discrimination, 1965
_ Convention on the Elimination of All Forms of Discrimination against Women, 1979
_ Convention on the Rights of the Child, 1989
_ ILO Freedom of Association and Protection of the Right to Organise Convention, 1948
_ ILO Right to Organise and Collective Bargaining Convention, 1949
_ Universal Declaration of Human Rights, 1948
_ United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 1999

Regional instruments

_ African Charter on Human and Peoples’ Rights, 1981
_ African Charter on the Rights and Welfare of the Child, 1990
_ American Convention on Human Rights, 1969
_ Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, 1994
_ European Convention on Human Rights, 1950
_ European Social Charter, 1961, and European Social Charter, 1996 (revised)

1. Introduction

This chapter will deal with a number of fundamental freedoms which constitute some of the pillars of a democratic society that is respectful of human rights. Owing to space constraints, however, only the most important aspects of these freedoms will be highlighted. The Manual has hitherto emphasized the importance of a number of rights such as the right not to be subjected to arbitrary detention, the right to a fair trial and the right to freedom from torture and other forms of ill-treatment. As a result, many of the chapters have also focused on protection of the human person in the course of law enforcement procedures. This chapter, on the other hand, is concerned with rights or freedoms that are exercised at all levels of society and in a wide variety of settings and situations, for example in a person’s religious or philosophical activities, educational undertakings or in the spoken or written word. However, in many situations where there are problems
with the effective protection of human rights during law enforcement procedures, there is often a corresponding lack of tolerance for a person’s religious beliefs or his or her political or other convictions expressed at public gatherings, in books or in the mass media. To move towards full and comprehensive protection of the rights and freedoms of the individual, States should therefore take appropriate action to advance the cause of human rights in all relevant dimensions of society.
The chapter will deal first with freedom of thought, conscience and religion, secondly with freedom of opinion and expression, and thirdly with freedom of
association and assembly. Lastly, the role of the legal professions in protecting freedom of thought, conscience, religion, opinion, expression, association and assembly will be emphasized, and the chapter will close with some concluding remarks.

2. The Right to Freedom of Thought, Conscience and Religion

2.1 Relevant legal provisions

This sub-section contains the text of the most important legal provisions pertaining to freedom of thought, conscience and religion: Article 18 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
Article 18 of the International Covenant on Civil and Political Rights: “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” Article 8 of the African Charter on Human and Peoples’ Rights: “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” Article 12 of the American Convention on Human Rights: “1. Everyone has the right to freedom of conscience and of religion. This includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs either individually or together with others, in public or in private.

2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs. 3. Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. 4. Parents or guardians, as the case may be, have the right to provide for the religious or moral education of their children or wards that is in accord
with their own convictions.” Article 9 of the European Convention on Human Rights: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The right to freedom of religion is further guaranteed by:
_ Article 5(d)(vii) of the International Convention on the Elimination of All Forms of Racial Discrimination;
_ Article 14 of the Convention on the Rights of the Child;
_ Article 9 of the African Charter on the Rights and Welfare of the Child; and
_ Article 4(i) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women.
Moreover, as will be further shown in Chapter 13, international human rights law prohibits discrimination on the ground of religion (see, inter alia, articles 1(3), 13
and 55(c) of the Charter of the United Nations, article 2 of the Universal Declaration, articles 2(1), 4(1), 24(1) and 26 of the International Covenant on Civil and Political Rights; article 2 of the African Charter on Human and Peoples’ Rights, articles 1(1) and 27(1) of the American Convention on Human Rights and article 14 of the European Convention on Human Rights).

2.2 General meaning of the right to freedom of thought, conscience and religion

2.2.1 Article 18 of the International Covenant on Civil and Political Rights

As pointed out by the Human Rights Committee, the right to freedom of thought, conscience and religion guaranteed by article 18(1) of the International Covenant “is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others.” Furthermore, “the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief.” 1 The Committee points out that “the fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency,” 2 an issue that will be further dealt with in Chapter 16. It is noteworthy that article 18 “does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally…” 3 On the other hand, as regards the right to freedom of conscience, the Human Rights Committee held in the case of Westerman, that it does not as such imply the right to refuse all obligations imposed by law, nor does it provide immunity from criminal liability in respect of every such refusal. 4 The Committee also importantly underlines that, on the basis of articles 18(2) and 17 of the Covenant, “no one can be compelled to reveal his thoughts or adherence to a religion or belief.” 5 In other words, every man or women has the right to keep his or her religion or belief an exclusively private matter in all situations. The Human Rights Committee further states that “article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.” 6 The Human Rights Committee further observes “that the freedom to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief. Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert.” 7

The Committee adds that “policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care,
employment or the rights guaranteed by article 25 [i.e. the right to participate in government] and other provisions of the Covenant, are similarly inconsistent with
article 18(2). The same protection is enjoyed by holders of all beliefs of a non-religious nature.”8

2.2.2 Article 8 of the African Charter on Human and Peoples’ Rights

Article 8 of the African Charter on Human and Peoples’ Rights is brief. It merely stipulates that “freedom of conscience, the profession and free practice of religion shall be guaranteed” and that “no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” It is noteworthy that
this provision is silent on the question of freedom of thought and also on the freedom to adopt or change a religion or belief according to one’s own convictions.
In a case against Zaire, the African Commission on Human and Peoples’ Rights held that “the harassment of the Jehovah’s Witnesses and religious leaders,
including assassinations, destruction of religious structures and death threats” constituted a violation of article 8 of the Charter, since the Government had “presented no evidence that the practice of their religion in any way [threatened] law and order”.9

2.2.3 Article 12 of the American Convention on Human Rights

The right to freedom of conscience and religion as protected by article 12 of the American Convention on Human Rights is in many ways similar to the freedoms
guaranteed by article 18 of the International Covenant. However, in the Convention freedom of thought is not linked to these freedoms but to the right to freedom of expression set forth in article 13. The right to freedom of conscience and religion under article 12 of the American Convention also includes “freedom to maintain or to change one’s religion of beliefs”, a freedom that is strengthened by article 12(2) of the Convention, according to which “no one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.” It follows, a fortiori, that no one may be subject to “coercion” – the term used in article 18(2) of the Covenant – for purposes of either preventing a person from, or obliging a person to, maintain or change his or her religion or beliefs. In other words, a person’s religion or beliefs must at all times be fully voluntary. Freedom of conscience and religion as protected by article 12 of the American Convention is included in the list of non-derogable rights in article 27(2) and must therefore be guaranteed also “in time of war, public danger, or other emergency that
threatens the independence or security” of the State party concerned (art. 27(1) of the Convention).

Article 12 of the American Convention was considered in the case of Olmedo Bustos et Al. v. Chile – also called The Last Temptation of Christ case – concerning the annulment by the Chilean courts of an administrative decision taken by the Cinematographic Classification Council approving the exhibition of the film The Last
Temptation of Christ for an audience of a minimum of 18 years of age. The applicants submitted, inter alia, that their freedom of conscience had been violated because of the censorship of the film, which implied that a group of people with a specific religion decided what other people could see.10 In its judgment the Inter-American Court of Human Rights pointed out that “the right to freedom of conscience and religion allows everyone to maintain, change, profess and disseminate his religion or beliefs,” adding that this right is one of the foundations of democratic society, which, in its religious dimension, “constitutes a far–reaching element in the protection of the convictions of those who profess a religion and in their way of life”.11 However, in this case there was no evidence, according to the Court, to prove that any of the freedoms embodied in this article had been violated; “the prohibition of the exhibition of the film ‘The Last Temptation of Christ’ did not impair or deprive anyone of their right to maintain, change, profess or disseminate their religion or beliefs with total freedom.”12 As will be seen below, however, the prohibition did violate the right to freedom of thought and expression set forth in article 13 of the Convention.

2.2.4 Article 9 of the European Convention on Human Rights

Article 9(1) of the European Convention on Human Rights guarantees “the right to freedom of thought, conscience and religion; this right includes the freedom to
change [one’s] religion or belief.” In terms very similar to those used in article 18(1) of the Covenant, article 9(1) of the European Convention also protects the freedom of every person, “either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”. In the case of Kokkinakis v. Greece, the European Court of Human Rights held that “freedom of thought, conscience and religion” as enshrined in article 9 “is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”13 Yet, as made clear by the same Court in the case of Kalaç v. Turkey, article 9 “does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account.”14

This case arose out of a complaint brought by Mr. Kalaç, a judge advocate in the Turkish army, who was compelled to retire for having “adopted unlawful
fundamentalist opinions”; he was considered to be at least a de facto member of the Muslim Süleyman sect.15 According to the Government, his compulsory retirement “was intended to remove from the military legal service a person who had manifested his lack of loyalty to the foundation of the Turkish nation, namely secularism, which it was the task of the armed forces to guarantee”.16 The applicant argued, on the other hand, that he had been unaware of the existence of the Süleyman sect and that domestic law gave no indication as to the meaning of the expression “unlawful fundamental opinions”, given as grounds for his compulsory retirement.17 The European Court concluded, however, that there had been no violation of article 9 in this case. It held, in particular, that “In choosing to pursue a military career Mr Kaliç was accepting of his own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the armed forces limitations incapable of being imposed on civilians … States adopt for their armies disciplinary regulations forbidding this or that type of conduct, in particular an attitude inimical to an established order reflecting the requirements of military service.”18 The Court noted that it was not contested “that the applicant, within the limits imposed by the requirements of military life, was able to fulfil the obligations which constitute the normal forms through which aMuslim practises his religion”. He was, in particular, permitted to pray five times a day and to perform his other religious duties,
such as keeping the fast of Ramadan and attending Friday prayers at the mosque.19 Lastly, the SupremeMilitary Council’s order was not based on the applicant’s “religious opinions and beliefs or the way he performed his religious duties but on his conduct and attitude”, which, according to the Turkish authorities, “breached military discipline and infringed the principle of secularism”.20 There had not therefore been any breach of article 9 in this case. It should be pointed out that, since the Court concluded that the applicant’s compulsory retirement did not constitute an interference with his right to freedom of religion, it was not necessary to deal with the case under article 9(2) of the Convention. The right to freedom of thought, conscience and religion is far-reaching and covers all matters relating to one’s personal convictions. It protects not only religious people but also, for instance, atheists, agnostics, sceptics and the indifferent.

The right to freedom of thought, conscience and religion also implies that every person has the unconditional right to have and adopt a religion of his or her choice. This freedom includes the right to change one’s religion. Every person has the right not to be coerced or otherwise compelled to maintain, adopt or change a religion. The right to freedom of thought, conscience and religion, including the freedom to have, adopt or change religion according to one’s choice, are
protected unconditionally, although freedom of conscience does not imply a right to refuse all obligations imposed by law. No limitations may be imposed on the freedom to adopt or change a religion of one’s choice. Under the International Covenant on Civil and Political Rights and the American Convention on Human Rights, freedom of thought, conscience and religion cannot be derogated from in any circumstances. Freedom of thought, conscience and religion is a cornerstone of a democratic society/a society respectful of human rights.

2.3 The right to manifest one’s religion or belief

Article 18(1) of the International Covenant guarantees the freedom to manifest one’s religion or belief “either individually or in community with others and in
public or private” and the freedom to do so “in worship, observance, practice and teaching”. As noted by the Human Rights Committee, it is thus a freedom that
“encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.”21 The Committee expressed concern, for instance, regarding provisions in the Freedom of Conscience and Religion Organizations Act in Uzbekistan “that require religious organizations and associations to be registered to be entitled to manifest their religion and beliefs” and article 240 of the Uzbek Penal Code, “which penalizes the failure of leaders of religious organizations to register their statutes”. The Committee strongly recommended that these provisions be abolished since they were not in conformity with article 18(1) and (3) of the Covenant. It further recommended that criminal procedures initiated on the basis of these provisions should be discontinued and convicted persons pardoned and compensated.22

As noted above, article 8 of the African Charter on Human and Peoples’ Rights is the most laconic of the provisions considered in this chapter since it merely
guarantees “the profession and free practice of religion”, adding that “no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”

According to article 12(1) of the American Convention on Human Rights, the right to freedom of conscience and religion includes “freedom to profess or
disseminate one’s religion or beliefs either individually or together with others, in public or in private”.

Under article 9(1) of the European Convention on Human Rights, the right to freedom of religion includes “freedom, either alone or in community with others and in
public or private, to manifest [one’s] religion or belief, in worship, teaching, practice and observance”. In the case of Kokkinakis v. Greece, the European Court held that, “while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest (one’s) religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions”.23 It added that, according to article 9 of the European Convention, “freedom to manifest one’s religion is not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right to try to convince one’s neighbour, for example through ‘teaching’, failing which, moreover, ‘freedom to change (one’s) religion or belief’, enshrined in Article 9, would be likely to remain a dead letter.”24 The case of Cha’are Shalom ve Tsedek v. France raised the issue of permits to perform ritual slaughters in France. The applicant association complained that articles 9 and 14 of the European Convention had been violated by the refusal of the French authorities to grant it “the approval necessary for it to authorise its own ritual slaughterers to perform ritual slaughter, in accordance with religious prescriptions of its members,” and by their granting such approval to the Joint Rabbinical Committee (ACIP) alone.25 The applicant association submitted that the conditions for ritual slaughter as performed by the slaughterers authorized by ACIP “no longer satisfied the very strict requirements of the Jewish religion” so that ultra-orthodox Jews could not obtain perfectly pure or glatt meat.26 In their view, the refusal to approve it for purposes of slaughter could not be justified under article 9(2) of the Convention and was a disproportionate and discriminatory measure contrary to article 14 thereof.27 Referring to the text of article 9(1), the Court noted that it was not contested “that ritual slaughter, as indeed its name indicates, constitutes a rite or ‘rite’ (the word in the French text of the Convention corresponding to ‘observance’ in the English), whose purpose is to provide Jews with meat from animals slaughtered in accordance with religious prescriptions, which is an essential aspect of practice of the Jewish religion”.28 The question next arose whether the refusal to authorize the applicant association to approve its own ritual slaughterers constituted an interference with their freedoms under article 9(1) of the Convention. In the opinion of the Court, “there would be interference with the freedom to manifest one’s religion only if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable.” However, this was not the case, since it was not contested that the applicant association could easily obtain supplies of glatt meat from Belgium. It was further apparent from the material before the Court that a number of butchers’ shops operating under the control of ACIP made meat certified glatt.29 Although the applicant association did not trust the ritual slaughters authorized by ACIP, the Court took the view that “the right to freedom of religion guaranteed by Article 9 of the Convention cannot extend to the right to take part in person in the performance of ritual slaughter and the subsequent certification process, given that ... the applicant association and its members are not in practice deprived of the possibility of obtaining and eating meat considered by them to be more compatible with religious prescriptions.”30 As it had not been established that Jews belonging to the applicant association could not obtain glatt meat, or that the applicant could not supply them with it by reaching an agreement with the ACIP, in order to be able to engage in ritual slaughter under cover of the approval granted to the ACIP, the Court concluded “that the refusal of approval complained of did not constitute an interference with the applicant association’s right to freedom to manifest its religion”.31 It was not necessary therefore for the Court to rule on the compatibility of the restriction challenged by the applicant under article 9(2) of the Convention. The Court observed, nevertheless, that, even on the assumption that the impugned measure “could be considered an interference with the right to freedom to manifest one’s religion,” it was prescribed by law and pursued a legitimate aim, namely, “the protection of public health and public order, in so far as organisation by the State of the exercise of worship is conducive to religious harmony and tolerance”. Having regard to the margin of appreciation left to the Contracting States, particularly with regard to establishment of the delicate relations between the State and religions, it could not be considered excessive or disproportionate and the measure was not, therefore, in breach of article 9(2).32 As to the question of alleged discrimination, the Court concluded that there had been no violation of article 9 in conjunction with article 14 of the Convention. It noted in particular that the difference of treatment which resulted from the measure complained of “was limited in scope”. In so far as there was a difference of treatment, it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be realized. The difference of treatment therefore “had an objective and reasonable justification within the meaning of the Court’s consistent case-law”.33

2.3.1 Limitations on the right to manifest one’s religion or belief

Among the freedoms guaranteed by article 18 of the International Covenant, only the freedom to manifest one’s religion or beliefs may be restricted. According to
article 18(3), this freedom “may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. The Human Rights Committee emphasizes that this provision “is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated.”34 The Committee importantly adds that limitations on the right to manifest one’s religion or beliefs “must not be applied in a manner that would vitiate the rights guaranteed in article 18”.35 Lastly, the limitations must not, of course, “be imposed for discriminatory purposes or applied in a discriminatory manner”.36
In resorting to limitations on the right to manifest one’s religion or beliefs, States parties must therefore ensure that they
_ comply with the principle of legality (“prescribed by law”);
_ are imposed exclusively for one or more of the objectives enumerated in article 18(3);
_ are necessary to achieve the objective concerned (principle of proportionality); and, lastly,
_ are not discriminatory but applied in an objective and reasonable manner.

With regard to the concept of morals as a possible justification for limitations on the freedom to manifest one’s religion or beliefs, the Committee states that it derives from many social, philosophical and religious traditions and that, consequently, “limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.”37 It further states that “persons already subject to certain legitimate restraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.”38 In the Sing Bhinder v. Canada case, the author, who was a Sikh, complained of a violation of article 18 of the Covenant as a consequence of the termination of his labour contract following his refusal to wear safety headgear during his work. The Committee examined this issue under both article 18 and article 26 of the Covenant and concluded that, if the requirement to wear a hard hat were regarded as raising an issue under article 18, it was a limitation justified by reference to the grounds laid down in article 18(3). On the other hand, if it was considered as a de facto discrimination against persons of the Sikh religion under article 26, “the legislation requiring that workers in the federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant.”39

The grounds for allowing limitations on the freedom to manifest one’s religion or beliefs contained in article 12(3) of the American Convention on Human Rights are similar to those found in article 18(3) of the International Covenant. Limitations may thus be imposed provided that they are “prescribed by law” and “are
necessary to protect public safety, order, health, or morals, or the rights or freedoms of others”. The measures resorted to must, in other words, be proportionate to the legitimate aim pursued.

According to article 9(2) of the European Convention on Human Rights, “freedom to manifest one’s religion or beliefs shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The grounds enumerated cover in substance those found in the other two treaties. There is thus an important convergence on the major issue of limitations on the freedom to manifest one’s religion or beliefs. However, article 9(2) of the European Convention adds the condition that limitations for the reasons invoked must be necessary “in a democratic society”. The necessity test must therefore be made in the light of the needs of a society based on a democratic constitutional order.

Article 9 was examined by the European Court of Human Rights in the case of Kokkinakis v. Greece concerning a Jehovah’s Witness convicted of proselytism in
Greece, where, by virtue of Law No, 1363/1938, as amended by Law No. 1672/1939, proselytism was made a crime during the dictatorship of Metaxas (1936-1940).40 The applicant was sentenced by the Lasithi Criminal Court to four months’ imprisonment, convertible into a pecuniary penalty, and to a fine of 10,000 drachmas. On appeal, the Crete Court of Appeal reduced the prison sentence to three months’ imprisonment converted into a pecuniary penalty.41 The applicant and his wife had been arrested at the home of a women who was married to the cantor at a local Orthodox church. The applicant mainly complained that this conviction was an unlawful restriction of the exercise of his right to freedom of religion.42 The European Court considered that Mr. Kokkinakis’ conviction amounted to an interference with his right to manifest his religion or belief, which would be contrary to article 9 unless it was: (1) “prescribed by law”; (2) directed at one or more of the legitimate aims in paragraph 2; and (3) “necessary in a democratic society” for achieving them.43 These various questions were dealt with as follows by the Court: Was the interference “prescribed by law”? In reply to the applicant’s argument that the Greek legislation did not describe the “objective substance” of the offence of proselytism,44 the Court noted that “the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague ... Criminal-law provisions on proselytism fall within this category. The interpretation and application of such enactments depends on practice.”45 In the case before it there was, however, “a body of settled national case-law ... which had been published and was accessible”, thereby supplementing the terms of the 1936 Law and enabling the applicant “to regulate his conduct in the matter”; it followed that the measure complained of was “prescribed by law” within the meaning of article 9(2) of the European Convention.46 Was the measure imposed for a legitimate aim? The Court concluded that, having regard to the circumstances of the case and the actual terms of the relevant court decisions, “the impugned measure was in pursuit of a legitimate aim under Article 9 § 2, namely the protection of the rights and freedoms of others, relied on by the Government”; the Government had in fact submitted “that a democratic State had to ensure the peaceful enjoyment of the personal freedoms of all those living on its territory” and that article 9(2) “would in practice be rendered wholly nugatory” unless the State were “vigilant to protect a person’s religious beliefs and dignity from attempts to influence them by immoral and deceitful means”.47 Was the prohibition “necessary in a democratic society”? This is the crucial test that numerous cases have failed to pass under various articles of the European Convention on Human Rights. The test of what is “necessary in a democratic society” is the ultimate safeguard against interference with the enjoyment of a person’s fundamental freedoms that cannot possibly be considered necessary in a society that is pluralistic and tolerant. Although the Contracting States have “a certain margin of appreciation ... in assessing the existence and extent of the necessity of an interference, ... this margin is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.” The task of the European Court in the Kokkinakis v. Greece case was therefore “to determine whether the measures taken at national level were justified in principle and proportionate”.48 As to the meaning of proselytism, the Court held that, first of all: “a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.”49 An examination of section 4 of Law No. 1363/1938 showed, however, that the criteria adopted by the Greek legislature were reconcilable with the foregoing if and insofar as they were “designed only to punish improper proselytism, which the Court [did] not have to define in the abstract in the present case”.50 The Court noted, on the other hand, “that in their reasoning the Greek courts established the applicant’s liability by merely reproducing the wording of article 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means”. Indeed, “none of the facts they set out warranted that finding”.51 It followed that it had not been shown “that the applicant’s conviction was justified in the circumstances of the case by a pressing social need” and the contested measure did not therefore appear “to have been proportionate to the legitimate aim pursued or, consequently, ‘necessary in a democratic society ... for the protection of the rights and freedoms of others’”. There had, in other words, been a violation of article 9 in the case.52 A violation of article 9 of the European Convention was also found in the case of Serif v. Greece, which – against a complex historical background – concerned the right of Muslims to organize elections for the post of Mufti in Rodopi. That right was overturned on 24 December 1990 by the Government through a legislative decree that was retroactively validated when the Greek Parliament passed Law No. 1920 on 4 February 1991. Requests had been made to the Government for the organization of elections to fill the post of Mufti in Rodopi following the death of the previous Mufti. In the absence of a reply, elections were held at the mosques after prayers on 28 December 1990. The applicant was elected Mufti and, together with other Muslims, challenged before the Supreme Court the Government’s decision to appoint another person to that position.53 On 12 December 1994, the Salonika Criminal Court found the applicant guilty under articles 175 and 176 of the Criminal Code “for having usurped the functions of a minister of a ‘known religion’ and for having publicly worn the dress of such a minister without having the right to do so”.54 The applicant was given a commutable sentence of eight months’ imprisonment, which was reduced to six months on appeal, the Court of Appeal having upheld the conviction. The sentence was commuted to a fine.55 Before the European Court, the applicant complained that his conviction amounted to unjustified interference with his right to be free to exercise his religion together with all those who turned to him for spiritual guidance.56 The Court concluded in the first place that the applicant’s conviction amounted to “an interference with his right under Article 9 § 1 of the Convention, ‘in community with others and in public ... to manifest his religion ... in worship [and] teaching’”; this followed from the facts on which the conviction was based, according to which the applicant had issued a message about the religious significance of a feast, delivered a speech at a religious gathering, worn the dress of a religious leader and so forth.57 The Court did not, however, consider it necessary to deal with the question whether the interference was “prescribed by law”, since it was in any event contrary to article 9 on other grounds. The Court next accepted that the interference pursued a legitimate aim under article 9(2) of the Convention, namely protection of “public order”, since “the applicant was not the only person claiming to be the religious leader of the local Muslim community”, the authorities having appointed another person. The Government had argued that the interference served a legitimate purpose because by protecting the authority of the lawful mufti “the domestic courts sought to preserve order in the particular religious community and in society at large.”58

Lastly, in considering whether the interference was necessary in a democratic society, the Court recalled its ruling in the Kokkinakis case, according to which “freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’”, pluralism being “indissociable” from such a society.59 It was true, nevertheless, that “in a democratic society it may be necessary to place restrictions on freedom of religion to reconcile the interests of the various religious
groups ... However, any such restriction must correspond to a ‘pressing social need’ and must be ‘proportionate to the legitimate aim pursued’.”60 Yet in the Court’s view, “punishing a person for merely acting as the religious leader of a group that willingly followed him can hardly be considered compatible with the demands of religious pluralism in a democratic society.”61 The Court was “not oblivious of the fact that in Rodopi there existed, in addition to the applicant, an
officially appointed mufti” and that the Government had argued “that the applicant’s conviction was necessary in a democratic society because his actions undermined the system put in place by the State for the organisation of the religious life of the Muslim community in the region”. The Court recalled, however, that there was “no indication that the applicant attempted at any time to exercise the judicial and administrative functions for which the legislation on the muftis and other ministers of ‘known religions’ makes provisions”. It did not consider that “in democratic societies, the State needs to take measures to ensure that religious communities remain or are brought under a unified leadership”.62 It only remained for the Court to consider the Government’s argument “that, in the particular circumstances of the case, the authorities had to intervene in order to avoid the creation of tension among the Muslims in Rodopi and between the Muslims
and the Christians of the area as well as Greece and Turkey”. To this the Court gave the following important reply: “Although the Court recognises that it is possible that tension is created in situations where a religious or any other community becomes divided, it considers that this is one of the unavoidable consequences of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.”63 The Court noted that, “apart from a general reference to the creation of tension, the Government did not make any allusion to disturbances among the Muslims in Rodopi that had actually been or could have been caused by the existence of two religious leaders.” It considered, moreover, that nothing had been adduced “that could warrant qualifying the risk of tension between the Muslims and Christians or between Greece and Turkey as anything more than a very remote possibility”.64

In the light of all these considerations, the Court concluded that it had not been shown that the applicant’s conviction “was justified in the circumstances of the
case by ‘a pressing social need’”. As a result, the interference with his right, in community with others and in public, to manifest his religion in worship and teaching
was not “necessary in a democratic society ... for the protection of public order” under Article 9 § 2 of the Convention.65 It followed that article 9 had been violated. The third case relating to article 9 of the European Convention on Human Rights is that of Buscarini and Others v. San Marino concerning the obligation imposed on the applicants to take an oath containing a reference to the Holy Gospels on pain of forfeiting their parliamentary seats in the Republic of San Marino. In their view, it had been shown that in the Republic “at the material time the exercise of a fundamental political right, such as holding parliamentary office, was subject to publicly professing a particular faith” in breach of article 9 of the Convention.66 For its part the Government maintained “that the wording of the oath in question was not religious but, rather, historical and social in significance and based on tradition”. It did not, therefore, amount to a limitation of the applicants’ freedom of religion.67 Reiterating its fundamental ruling in the Kokkinakis case on freedom of thought, conscience and religion, the Court added that this freedom “entails, inter alia, freedom to hold or not to hold religious beliefs and to practice or not to practice a religion”. The obligation for the applicants to take the oath on the Gospels “did indeed constitute a limitation” within the meaning of article 9(2) of the Convention, “since it required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats”.68 The question thus arose whether such interference could be justified as being prescribed by law and necessary in a democratic society for one or more of the legitimate aims set out in article 9(2). The Court concluded that the measure was “prescribed by law”, since it was based on section 55 of the Elections Act of 1958, which referred to the Decree of 27 June 1909 laying down the wording of the oath to be sworn by members of the Parliament.69 Without determining in this case whether there were any legitimate aims justifying the interference within the meaning of article 9(2) of the Convention, the Court concluded that it was not in doubt that, in general, the law of San Marino guarantees freedom of conscience and religion. In the instant case, however, “requiring the applicants to take oath on the Gospels was tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion,” a requirement that was not compatible with article 9 of the Convention, which had therefore been violated.70 In other words, the interference was not necessary in a democratic society.

2.3.2 Prohibitions on the freedom to manifest one’s religion or belief

Article 18 of the International Covenant must be read in conjunction with article 20, according to which the following acts “shall be prohibited by law”:
_ any “propaganda for war” (art. 20(1)), and
_ any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” (art. 20(2)).71
It follows that the manifestation of religion or beliefs must not at any time be used as a tool for the encouragement of war or for advocacy of hatred. The Human
Rights Committee confirms that no derogation made pursuant to article 4(1) of the Covenant “may be invoked as justification for a State party to engage itself, contrary to article 20, in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence”.72 The fact that States parties are legally bound to outlaw war propaganda and religious incitement to discrimination, hostility and violence implies that they also have a legal duty to ensure that this prohibition is respected in practice. Every person has the right to manifest his or her religion either in private or in public and either individually or in community with others. The manifestation of one’s religion or beliefs may cover such activities as worship, observance, practice, teaching, evangelization and rites. The right to manifest one’s religion may be subjected to limitations, provided that such limitations are
_ prescribed by law
_ imposed in order to protect a legitimate aim, namely public safety, (public) order, health, morals or the rights and freedoms of others, and
_ necessary in order to protect the legitimate objective.
At the European level, the notion of a democratic society plays a pivotal role in determining the necessity of measures limiting a person’s right to manifest his or her religion or beliefs.

2.4 Freedom of religion and public school instruction

According to the Human Rights Committee, “the liberty of parents or legal guardians to ensure that their children receive a religious and moral education in
conformity with their own convictions” under article 18(4) of the Covenant “is related to the guarantees of the freedom to teach a religion or belief stated in article 18.1”. This means, inter alia, that article 18(4) of the Covenant “permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way”, but that “public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.”73 In the case of Hartikainen v. Finland, the author complained of a violation of article 18(4) of the Covenant as a consequence of the requirement in Finnish legislation that instruction in the history of religions and ethics should be given instead of religious instruction to students whose parents or legal guardians objected to religious instruction. The author, who was a teacher and also a member of the Union of Free Thinkers in Finland, wanted such alternative classes to be neutral and non-compulsory. Disagreeing with the author, the Committee concluded that such alternative instruction in the history of religions and ethics was not in itself incompatible with article 18(4) of the Covenant if “given in a neutral and objective way”, respecting “the convictions of parents and guardians who do not believe in any religion”. In any event, the impugned legislation expressly permitted parents and guardians who did not wish their children to be given either religious instruction or instruction in the history of religions and ethics to obtain exemption therefrom by arranging for them to receive comparable instruction outside school.74

Article 12(4) of the American Convention guarantees the right of parents and guardians, as the case may be, to provide for the religious and moral education of their children or wards that is in accord with their own convictions.

Although article 9 of the European Convention contains no similar guarantee, the second sentence of article 2 of Protocol No. 1 to the Convention states that:
“In the exercise of any functions which is assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” According to the European Court of Human Rights, this sentence, which is an
adjunct to the fundamental right to education guaranteed by the first sentence of the article,75 “is binding upon the Contracting States in the exercise of each and every function – it speaks of ‘any functions’ – that they undertake in the sphere of education and teaching, including that consisting of the organisation and financing of public education”.76

The provision “aims in short at safeguarding the possibility of pluralism in education, which possibility is essential for the preservation of the ‘democratic society’
as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised.”77 Article 2 of Protocol No. 1 thus “enjoins the State to respect parents’ convictions, be they religious or philosophical, throughout the entire State education programme” and it does not therefore “permit a distinction to be drawn between religious instruction and other subjects”.78 However, the second sentence of article 2 of the Protocol
“does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable.”79 The same provision “implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious or philosophical convictions. That is the limit that must not be exceeded.”80 In the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark, the applicants objected to the integrated and compulsory sex education in Danish primary schools and alleged that this violated their rights under, inter alia, article 2 of Protocol No. 1 to the Convention. However, after examining the Danish legislation, the Court concluded that the provision had not been violated. In its opinion, the legislation did not entail “overstepping the bounds of what a democratic State may regard as the public interest” and it “in no way [amounted] to an attempt at indoctrination aimed at advocating a specific kind of sexual behaviour”.81 The Court added, however, that, in order to avoid abuses in its application by a given school or teacher “the competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism.” 82

In the case of Campbell and Cosans, on the other hand, the Court concluded that there had been a violation of the second sentence of article 2 of Protocol No. 1 as a consequence of the existence of corporal punishment as a disciplinary measure in the schools attended by the applicants’ children, such punishment being contrary to their philosophical convictions.83 Under the International Covenant on Civil and Political Rights and the American Convention on Human Rights, parents or legal guardians have the right to ensure that the religious and moral education of their children is conveyed in accordance with their own convictions.
It is, however, compatible with the International Covenant to impart public school instruction in subjects such as the general history of religions and ethics provided that this is done in a neutral and objective manner. Under the European Convention on Human Rights, the Contracting States are legally bound to ensure that in each and every function that they undertake in the field of education and teaching, the religious or philosophical convictions of parents or legal guardians are respected. This means that States have to take care to impart information or knowledge in an objective, critical and pluralistic way and that they are forbidden to pursue an aim of indoctrination.

2.5 State religion and religious minorities

The recognition of a religion as a so-called State religion or a religion that is simply an official or traditional religion or a religion professed by a majority of the
State’s population can easily imply that other religions are discriminated against. However, as noted by the Human Rights Committee, this situation “shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers”.84 It would, for instance, be contrary to the non-discrimination provision in article 26 of the Covenant to adopt “measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths”.85 The Committee points out in this connection that article 20(2) of the Covenant provides “important safeguards against infringements of the rights of
religious minorities and of other religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or persecution directed towards those groups”.86

Lastly, the Committee stresses that “if a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual
practice, this shall not result in any impairment of the freedoms under article 18 or any other rights recognized under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it.”87 The Human Rights Committee has emphasized that States parties to the International Covenant on Civil and Political Rights have a legal duty to ensure that there is no discrimination against adherents of different religions or non-believers.

2.6 Conscientious objection on religious grounds

Although the right to conscientious objection is not expressly guaranteed by the International Covenant, the Human Rights Committee “believes that such a right
can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s
religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their
particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service.”88 These views have been confirmed in several cases brought under the Optional Protocol to the Covenant, such as that of Westerman v. the Netherlands, in which the author complained, inter alia, of a violation of article 18 as a consequence of his being sentenced to nine months’ imprisonment for refusing to wear a military uniform as
ordered by a military officer. Prior to entering military service, the author had in vain tried to be recognized as a conscientious objector on the basis that the army was “contrary to the destination of (wo)man”.89 The issue to be decided by the Committee was whether the imposition of sanctions on the author “to enforce the performance of military duty was ... an infringement of his right to freedom of conscience”. The Committee pointed out that the responsible authorities “evaluated the facts and arguments advanced by the author in support of his claim for exemption as a conscientious objector in the light of its legal provisions in regard to conscientious objection and that these legal provisions [were] compatible with the provisions of article 18”. It further observed that the author had “failed to satisfy” the State authorities “that he had an ‘insurmountable objection of conscience to military service ... because of the use of violent means’”. On this basis, the
Committee concluded that there was “nothing in the circumstances of the case which [required it] to substitute its own evaluation of this issue for that of the national
authorities”.90 It followed that article 18 had not been violated.

The question of conscientious objection may, however, also be examined under articles 8 and 26 of the Covenant. Under article 8(3)(c)(ii), the term “forced and
compulsory labour” shall not include “any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors”. The Committee has, however, consistently found a violation of article 26 of the Covenant where the national alternative service is disproportionately longer than the military service. This was the situation, for instance, in the case of R. Maille v. France. French law required conscientious objectors to complete 24 months of alternative service instead of 12 months of military service. In this case the Committee concluded that article 26 of the Covenant had been violated “since the author was discriminated against on the basis of his conviction of conscience”, the Government having failed to submit any reasons to show that the differentiation was based on “reasonable and objective criteria” that would justify the longer period of service.91 With regard to conscientious objection, the Committee further considers that the exemption of only one group of conscientious objectors, such as the Jehovah’s Witnesses, and the inapplicability of exemption for all others cannot be considered reasonable, since “no differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs.”92 Yet where the author had not shown “that his convictions as a pacifist [were] incompatible with the system of substitute
service ... or that the privileged treatment accorded to Jehovah’s Witnesses adversely affected his rights as a conscientious objector against military service”, the Committee found that he had not been a victim of a violation of article 26 of the Covenant.93 The Human Rights Committee has accepted that the right to
conscientious objection can be derived from article 18 of the International Covenant on Civil and Political Rights. This right is not unconditional and the Committee may be reluctant to re-examine decisions taken by the national authorities in this regard. However, when the right to conscientious objection is recognized in national law, there must be no discrimination between the persons concerned on the basis of their particular beliefs. Alternative/substitute service must not be disproportionately longer than ordinary military service. Any distinction in this regard must be based on reasonable and objective criteria.

3. The Right to Freedom of Opinion and Expression

3.1 Relevant legal provisions

The main legal provisions dealt with in this subsection are: Article 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 19 of the International Covenant on Civil and Political Rights: “1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law
and are necessary: (a) For respect of the rights and reputation of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” Article 9 of the African Charter on Human and Peoples’ Rights: “1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.” Article 13 of the American Convention on Human Rights: “1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice. 2. The exercise of the right provided for in the foregoing paragraph
shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals. 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinion. 4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offences punishable by law.” Article 10 of the European Convention on Human Rights: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The right to freedom of expression is also guaranteed by article 5(d)(viii) of the International Convention on the Elimination of All Forms of Racial Discrimination and article 13 of the Convention on the Rights of the Child.

As the substance of freedom of expression is intrinsically linked to limitations on its exercise, these two issues will be dealt with jointly in the light of the extensive
jurisprudence and legal comments of the international monitoring bodies.

3.2. Article 19 of the International Covenant on Civil and Political Rights

The right “to hold opinions without interference” guaranteed by article 19(1) “is a right to which the Covenant permits no exception or restriction”.94 This is logical
since it is impossible to control what goes on in a person’s mind. The right to freedom of expression, as guaranteed by article 19(2), is multi-dimensional and wide-ranging, and includes “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of [one’s] choice”. In its 1983 General Comment on this article, the Human Rights Committee notes that it is not sufficient for States parties to claim in their periodic reports that freedom of expression is guaranteed by the Constitution; “in order to know the precise regime of freedom of
expression in law and in practice, the Committee needs in addition pertinent information about the rules which either define the scope of freedom of expression or
which set forth certain restrictions, as well as any other conditions which in practice affect the exercise of this right.”95 The restrictions permitted by article 19(3) of the Covenant “shall only be such as are provided by law and are necessary … for respect of the rights or reputations of others” or “for the protection of national security or of public order (ordre public), or of public health or morals”. In other words, to be lawful, restrictions on freedom of expression must comply with the principles of legality and proportionality and be imposed for one or more of the legitimate purposes enumerated in article 19(3). The Committee has further emphasized that the right to freedom of expression “is of paramount importance in any democratic society, and any restrictions to the exercise thereof must meet a strict test of justification”.96 Freedom of expression may, however, also be limited on the basis of article 20 of the Covenant, according to which “propaganda for war” and “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The scope of article 19 in various contexts will be further illustrated by a selection of communications brought under the Optional Protocol and of recommendations made by the Committee in connection with the consideration of the periodic reports of States parties. Article 19(1) of the International Covenant on Civil and Political Rights guarantees the right to hold opinions without interference. This right may not be subjected to any exception or restriction.

As a point of departure, the right to freedom of expression in article 19(2) of the Covenant may be described as all-encompassing in that it includes the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers, whether in oral, written or printed form or through any other media of one’s choice. Art is a form of expression protected by article 19(2). Freedom of expression may be limited only on the basis of articles 19(3) and 20 of the Covenant.

3.2.1 Choice of language in court

In the case of Cadoret and Le Bihan v. France, the authors claimed that their freedom of expression had been violated since they were not allowed to use the Breton language in French courts; the Committee observed that the fact that the authors had not been able to speak the language of their choice raised no issues under article 19(2). The complaint was therefore declared inadmissible.97 In Australia, the same finding was made with regard to the provision of sign language in court for deaf people.98 It should be recalled, however, that a person who does not understand the language used in court has the right to free assistance of an interpreter (see Chapter 7, subsection 3.9). Freedom of information, as guaranteed by article 19 of the International Covenant on Civil and Political Rights, does not include a right to speak the language of one’s choice in court proceedings.

3.2.2 Advertising

In the case of Ballantyne, Davidson and McIntyre v. Canada, the authors, who were living in Quebec, complained of a violation of, inter alia, article 19 of the Covenant because they were “forbidden to use English for purposes of advertising, e.g. on commercial signs outside the business premises, or in the name of the firm”.99 The Human Rights Committee did not share the Canadian Government’s view that commercial activities are not covered by article 19. It held that article 19(2) “must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others, which are compatible with article 20 of the Covenant, of news and information, of commercial expression and advertising, or works of art, etc.; it should not be confined to means of political, cultural or artistic expression. In the Committee’s opinion, the commercial element in an expression taking the form of outdoor advertising cannot have the effect of removing this expression from the scope of protected freedom. The Committee does not agree either that any of the above forms of expression can be subjected to varying degrees of limitation, with the result that some forms of expression may suffer broader restrictions than others.”100 As the right to freedom of expression set forth in article 19(2) had thus been limited, the Committee had to decide whether the restrictions could be justified under article 19(3) of the Covenant. While the relevant measures were “indeed provided for by law”, namely section 58 of the Charter of the French Language as amended by section 1 of Bill No. 178, the question arose whether they were necessary to ensure respect for the rights of others, namely “the rights of the francophone minority within Canada”. The Committee believed that it was “not necessary, in order to protect the vulnerable position in Canada of the francophone group, to prohibit commercial advertising in English”, since such protection could be achieved in other ways not precluding “the freedom of expression, in a language of their choice, of those engaged in such fields as trade”. The law could, for instance, have required that advertising be in both French and English. The Committee added that “a State may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one’s choice.”101 It followed that article 19(2) had been violated.102 Freedom of expression, as guaranteed by article 19(2) of the International Covenant on Civil and Political Rights, is not limited to means of political, cultural and artistic expression but covers every form of subjective idea and opinion that is capable of transmission to others, such as commercial advertising. Outside the public sphere, individuals have the right to choose the language in which they wish to express themselves. In public life, however, a State may choose one or more official languages.

3.2.3 Defamation and dissemination of false information

The Human Rights Committee observed that a provision in the Croatian Penal Code allowing proceedings for slander could, in certain circumstances, lead to
restrictions that go beyond those permissible under article 19(3). However, given the absence of specific information by the author in the case of D. Paraga v. Croatia and the dismissal of the charges against him, the Committee was unable to conclude that the institution of proceedings against the author, by itself, amounted to a violation of article 19. The proceedings had been instituted because he had referred to the Croatian President as a “dictator”.103

When considering the initial report of Croatia, the Committee also pointed out that, although the right to freedom of expression was constitutionally guaranteed,
“the variety of provisions in the Criminal Code dealing with offences against honour and reputation, covering areas of defamation, slander, insult and so forth [were]
uncertain in their scope, particularly with respect to speech and expression directed against the authorities.” It therefore urged the State party to work towards developing “a comprehensive and balanced code in this area” setting out clearly and precisely the restrictions on freedom of speech and expression and ensuring that such restrictions did not exceed those permissible under article 19(3) of the Covenant.104 The Committee also took note of the existence of the crime of disrespect of authority (desacato), in the Dominican Republic, which it deemed contrary to article 19 of the Covenant. The State party was asked to take steps to abolish that crime.105 The Committee expressed concern in the case of Iraq about “severe restrictions on the right to express opposition to or criticism of the Government or its policies” and about the fact that “the law imposes life imprisonment for insulting the President of the Republic, and in certain cases death.” The Committee also noted that the law “imposes severe punishments for vaguely defined crimes which are open to wide interpretations by the authorities, such as writings detrimental to the President”. In its view, “such restrictions on freedom of expression, which effectively prevent the discussion of ideas or the operation of political parties in opposition to the ruling Ba’ath party, constitute a violation of articles 6 and 19 of the Covenant and impede the implementation of articles 21 and 22 of the Covenant, which protect the rights to freedom of peaceful assembly and association.”. It observed that the penal laws and decrees imposing restrictions on the freedoms of expression, peaceful assembly and association should be amended so as to comply with the relevant provisions of the Covenant.106
The Committee expressed concern about a number of aspects of freedom of expression in Slovakia such as article 98 of the Penal Code which makes it an offence to disseminate false information abroad which harms the interest of the State. In the Committee’s view, “this terminology ... is so broadly phrased as to lack any certainty and carries the risk of restricting freedom of expression beyond the limits allowable under [article 19(3)]”. The Committee also expressed concern about “lawsuits for defamation resulting from expressing criticism of the Government” which posed a problem under article 19.107 States parties to the International Covenant on Civil and Political Rights must ensure that laws on defamation and dissemination of false information comply with the principle of legal certainty; in other words, such laws must be sufficiently detailed to allow persons to adopt a form of conduct that does not violate them.

Legislative provisions which limit freedom of expression by, for instance, generally penalizing “disrespect for authority” and criticism of governing bodies and ruling parties, are not consistent with article 19 of the Covenant. The effective protection of freedom of expression is also indispensable for implementation of the rights of freedom of peaceful assembly and association set forth in articles 21 and 22 of the Covenant.

3.2.4 Denial of crimes against humanity and advocacy of hatred

The permissibility of denying crimes against humanity was raised in the case of Faurisson v. France, which concerned the author’s conviction by French courts on the basis of the so-called “Gayssot Act”, which amended the 1881 Freedom of the Press Act to make it an offence “to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945”. In an interview the author had “reiterated his personal conviction that there were no homicidal gas chambers for the extermination of Jews in Nazi concentration camps”.108 This restriction on the author’s freedom of expression, as guaranteed by
article 19(2), had to be examined in the light of article 19(3), according to which, as seen above, any restriction must cumulatively meet the following three conditions: (1) be prescribed by law, (2) be imposed for one of the legitimate purposes enumerated therein and (3) be necessary for one or more of those purposes. The Committee accepted in the first place that the principle of legality had been respected in that the restriction was prescribed by the Gayssot Act, on the basis of which the author was convicted for “having violated the rights and reputation of others”.109 It next agreed that the restriction was imposed for a legitimate purpose, namely to ensure respect for the rights or reputation of others under article 19(3)(a) of the Covenant. It pointed out in this regard that “the rights for the protection of which restrictions on the freedom of expression are permitted [by article 19(3)] may relate to the interests of other persons or to those of the community as a whole.” As the statements made by the author, “read in their full context, were of a nature as to raise or strengthen anti-Semitic feelings, the
restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-Semitism”.110 The final question to be decided was, however, whether the restriction was necessary for this legitimate purpose. In the absence of any argument undermining the validity of the Government’s submission that “the Gayssot Act was intended to serve the struggle against racism and anti-Semitism” and the statement by a former Minister of Justice characterizing “the denial of the existence of the Holocaust as the principle vehicle for anti-Semitism”, the Committee was satisfied that the restriction of Mr. Faurisson’s freedom of expression was necessary within the meaning of article 19(3) of the Covenant.111 In a case concerning the freedom of expression of teachers, the Ross v. Canada case, the Committee likewise concluded that article 19 had not been violated. The question that had to be decided was whether the author’s right to freedom of expression had been restricted contrary to article 19 of the Covenant by virtue of the decision of the Human Rights Board of Inquiry, upheld by the Supreme Court of Canada, as a result of which the author was placed on leave without pay for a week and subsequently transferred to a non-teaching position.112 It appears from the assessment of the Board of Inquiry that statements made by the author in his various books and pamphlets, which were published outside the framework of his teaching activities, denigrated the faith and beliefs of Jews.113 Disagreeing with the State party, the Committee was of the view that “the loss of a teaching position was a significant detriment, even if no or only insignificant pecuniary damage was suffered” and the removal of the author from his teaching position was therefore a restriction of his freedom of expression that needed to be justified under article 19(3).114 The Committee then accepted that the measure was provided for by law, namely the New Brunswick Human Rights Act as subsequently interpreted by the Supreme Court. On the question whether it also pursued a legitimate purpose, the Committee confirmed its Faurisson ruling that the terms “rights or reputation of others [in article 19(3)] may relate to other persons or to a community as a whole”. It added that: “restrictions may be permitted on statements which are of a nature as to raise or strengthen anti-Semitic feeling, in order to uphold the Jewish communities’ right to be protected from religious hatred. Such restrictions also derive support from the principles reflected in article 20(2) of the Covenant. The Committee notes that both the Board of Inquiry and the Supreme Court found that the author’s statements were discriminatory against persons of the Jewish faith and ancestry and that they denigrated the faith and beliefs of Jews and called upon true Christians to not merely question the validity of Jewish beliefs and teachings but to hold those of the Jewish faith and ancestry in contempt as undermining freedom, democracy and Christian beliefs and values. In view of the findings as to the nature and effect of the author’s public statements, the Committee concludes that the restrictions imposed on him were for the purpose of protecting the ‘rights and reputations’ of persons of Jewish faith, including the right to have an education in the public school system free from bias, prejudice and intolerance.”115

Lastly, with regard to the question of the necessity of the restriction, the Committee stated that “the exercise of the right to freedom of expression carries with it
special duties and responsibilities. These special duties and responsibilities are of particular relevance within the school system, especially with regard to the teaching of young students.” The influence exerted by schoolteachers may thus “justify restraints in order to ensure that legitimacy is not given by the school system to the expression of views which are discriminatory”.116 The Committee took note of the fact “that the Supreme Court found that it was reasonable to anticipate that there was a casual link between the expressions of the author and the ‘poisoned school environment’ experienced by Jewish children in the School district. In that context, the removal of the author from a teaching position can be considered a restriction necessary to protect the right and freedom of Jewish children to have a school system free from bias, prejudice and intolerance.”117 The Committee noted, furthermore, that “the author was appointed to a non-teaching position after only minimal period on leave without pay and that the restriction thus did not go any further than that which was necessary to achieve its protective functions.” It followed that there had been no violation of article 19.118 The exercise of freedom of expression carries with it special duties and responsibilities. The denial of crimes against humanity and incitement to discrimination may in certain circumstances justify restrictions on the exercise of freedom of expression for the protection of the rights and freedoms of others. The terms “rights or reputation of others” in article 19(3)(a) of the International Covenant may in this regard relate either to other persons or to a community as a whole. It is particularly important for States parties to ensure that the public education of young children is free from bias, prejudice and intolerance.

3.2.5 Threats to national security and public order

As will be shown by the cases cited in this subsection, it is not sufficient for a State party simply to invoke one of the legitimate purposes enumerated in article 19(3) in order to justify restrictions on the exercise of freedom of expression. It must also show, by providing specific and reliable details, that in the case in point the restriction was indeed “prescribed by law” and necessary for a specific legitimate purpose.

The notion of national security was at the core of the K-T Kim v. the Republic of Korea case, which concerned the author’s conviction under article 7(1) and (5) of the National Security Law of the Republic of Korea. The Criminal District Court of Seoul sentenced the author to three years’ imprisonment and one year of suspension of eligibility, a sentence that was reduced to two years’ imprisonment on appeal. His crime was that he had, together with other members of the National Coalition for Democratic Movement, prepared documents criticizing the Government and its foreign allies and appealing for national reunification.119 Article 7(1) and (5) of the National Security Law stipulate that “any person who assists an anti-State organization by praising or encouraging the activities of this organization, shall be punished” and that “any person who produces or distributes documents, drawings or any other material(s) to the benefit of an anti-State organization, shall be punished.”120 The Committee had thus to determine whether the author’s conviction, which constituted a restriction of his freedom of expression, was justified under article 19(3) of the Covenant. As it was prescribed by law, namely the National Security Law, it had to be decided whether it was necessary for one of the legitimate purposes specified in article 19(3). The Committee observed in this regard that there was a need for “careful scrutiny” because of “the broad and unspecific terms in which the offence under the National Security Law [was] formulated”.121 The Committee noted that the author had been convicted “for having read out and distributed printed materials which were seen as coinciding with the policy statements of the DPRK (North Korea), with which country the State party was in a state of war”. The Supreme Court had held “that the mere knowledge that the activity could be of benefit to North Korea was sufficient to establish guilt”. Even so, the Committee had to consider “whether the author’s political speech and his distribution of political documents were of a nature to attract the restriction allowed by article 19(3) namely the protection of national security”. It stated in this regard that: “It is plain that North Korean policies were well known within the territory of the State party and it is not clear how the (undefined) ‘benefit’ that might arise for the DPRK from the publication of views similar to their own created a risk to national security, nor is it clear what was the nature and extent of any such risk. There is no indication that the courts, at any level, addressed those questions or considered whether the contents of the speech or the documents had any additional effect upon the audience or readers such as to threaten public security, the protection of which would justify restriction within the terms of the Covenant as being necessary.”122 As the State party had failed both to specify the precise nature of the threat allegedly posed by the author’s exercise of freedom of expression and to provide “specific justifications” as to why it was necessary for national security to prosecute him for the exercise of this freedom, the Committee concluded that the restriction was not compatible with the requirements of article 19(3) of the Covenant. Article 19 had therefore been violated.123 In the case of T. Hoon Park v. the Republic of Korea, the author complained of his conviction under article 7(1) and (3) of the National Security Law, which was “based on his membership and participation in the activities of the Young Koreans United (YKU), during his study at the University of Illinois” in the United States during the years 1983-1989. According to the author, this organization was American and composed of young Koreans with the aim of discussing “issues of peace and unification between North and South Korea”.124 It appeared from the court judgments “that the conviction and sentence were based on the fact that the author had, by participating in certain peaceful demonstrations and other gatherings in the United States, expressed his support or sympathy to certain political slogans and positions”.125 In examining this case under article 19(3) of the Covenant, the Committee emphasized that “the right to freedom of expression is of paramount importance in any democratic society, and any restrictions to the exercise of this right must meet a strict test of justification.”126 To justify the restriction on the exercise of the author’s freedom of expression, the Government had maintained that it was necessary in order to protect “national security” but had in this regard only referred to “the general situation in the country and the threat posed by ‘North Korean communists’”. Again, the Committee considered that the State party had “failed to specify the precise nature of the threat” and it concluded that none of the arguments advanced by the State party sufficed to justify the restriction of the author’s freedom of expression under article 19(3) of the Covenant. Lastly, there was nothing in either the judicial decisions or the submissions of the State party to show that the author’s conviction was necessary for the protection of one of the legitimate purposes set forth in article 19. His conviction “for acts of expression” had therefore to be regarded as a violation of the article.127 In the case of V. Laptsevich v. Belarus, the author complained that his right to freedom of expression and opinion had been violated by the sanctions imposed on him following the confiscation of a leaflet concerning the anniversary of the proclamation of independence of Belarus. He was fined 390,000 roubles under the Code of Administrative Offences “for disseminating leaflets not bearing the required publication data”. The author insisted, however, that the leaflets did contain the data concerned “precisely in order to make it clear that the Press Act did not apply to his publication”.128 Although it was “implied” in the submissions of the State party “that the sanctions were necessary to protect national security”, there was nothing in the material before the Committee to suggest “that either the reactions of the police or the findings of the courts were based on anything other than the absence of necessary publication data”. Hence the sole issue to be decided by the Committee was “whether or not the sanctions imposed on the author for not including the details required by the Press Act [could] be deemed necessary for the protection of public order (ordre public) or for respect of the rights or reputation of others”.129 The Committee noted that the State party had made no attempt “to address the author’s specific case and explain the reasons for the requirement that, prior to publishing and disseminating a leaflet with a print run of 200, he was to register his publication with the administrative authorities to obtain index and registration numbers”. Furthermore, the State party had “failed to explain why this requirement was necessary for one of the legitimate purposes set out in [article 19(3)] and why the breach of the requirements necessitated not only pecuniary sanctions, but also the confiscation of the leaflets still in the author’s possession”.130 In the absence of any explanation justifying the registration requirement and the measures taken, the Committee concluded that these could not be deemed necessary “for the protection of public order (ordre public) or for respect of the rights or reputations [sic] of others”. There had consequently been a violation of article 19(2) of the Covenant.131 According to the Human Rights Committee, freedom of expression is of paramount importance in any democratic society and restrictions on the exercise of this freedom must therefore meet a strict test of justification. When invoking one or more of the legitimate purposes listed in article 19(3) of the International Covenant on Civil and Political Rights in order to justify restrictions on the exercise of freedom of expression, States parties must consequently provide sufficient specific and reliable details to substantiate their arguments. General references to notions such as national security and public order (ordre public) are insufficient and will not be accepted by the Human Rights Committee as a justification for restrictions on the exercise of freedom of expression.

3.2.6 Freedom of the press

The case of R. Gauthier v. Canada concerned the publisher of National Capital News in Canada, who, when applying for membership in the Parliamentary Press
Gallery, was only provided with a temporary pass which granted him limited privileges, a fact that he considered to be a violation of article 19 of the Covenant.132 The State party had actually “restricted the right to enjoy the publicly funded media facilities of Parliament, including the right to take notes when observing meetings of Parliament, to those media representatives who [were] members of a private organization, the Canadian Press Gallery”. The author had been denied full membership of the Press Gallery and had only occasionally held temporary membership which gave him access to some but not all facilities of the organisation. When he did not have temporary membership, he was denied access to the media facilities and could not take notes of Parliamentary proceedings.133 The Committee thus had to decide whether the author’s restricted access to the parliamentary press facilities amounted to a violation of his right under article 19 “to seek, receive and impart information”. In this connection it referred in the first place “to the right to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, and in particular to General Comment No. 25 (57) which reads in part: ‘In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.’ ... Read together with article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant.”134 The Committee next accepted that the author’s exclusion constituted a restriction of his right under article 19(2) to have access to information, and it thereby also rejected the State party’s argument that “the author [did] not suffer any significant disadvantage because of technological advances which make information about Parliamentary proceedings readily available to the public”.135 After accepting that the restriction was “arguably, imposed by law” in that it followed from the law of parliamentary privilege, the Committee also agreed “that the protection of Parliamentary procedure can be seen as a legitimate goal of public order” and that “an accreditation system can thus be a justified means of achieving this goal”. On the other hand, the Committee did not agree with the Government’s suggestion that this was “a matter exclusively for the State to determine” and it adopted the following Views on the issue: “The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent. In the instant case, the State party has allowed a private organization to control access to the Parliamentary press facilities, without intervention. The scheme does not ensure that there will be no arbitrary exclusion from access to the Parliamentary media facilities. In the circumstances, the Committee is of the opinion that the accreditation system has not been shown to be a necessary and proportionate restriction of rights within the meaning of article 19, paragraph 3, of the Covenant, in order to ensure the effective operation of Parliament and the safety of its members. The denial of access to the author to the press facilities of Parliament for not being amember of the Canadian Press Gallery Association constitutes therefore a violation of Article 19(2) of the Covenant.”136 The Committee noted “with regret” with regard to Gabon “that the powers vested in the National Council of Communication to monitor programmes and impose penalties on organs of the press are an obstacle to the exercise of freedom of the press”. The Committee also deplored “the harassment of journalists” and invited the State party “to bring its legislation into line with article 19 by doing away with censorship and penalties against organs of the press and ensuring that journalists may safely exercise their functions”.137 The Committee also expressed concern at the “growing number of complaints of systematic harassment and death threats against journalists intended to undermine freedom of expression” in Peru and requested the State party “to take the necessary measures to put an end to direct and indirect restrictions on freedom of expression, to investigate all complaints which have been filed and to bring the persons responsible to justice”.138 It also deplored “the methods used by Peru to take control of communications media away from persons critical of the Government, including stripping one of them of his nationality” and requested the State party “to eliminate these situations, which affect freedom of expression ... and to make effective remedies available to those concerned”.139 The Committee expressed concern about various provisions of the Press Law in the Democratic People’s Republic of Korea and their frequent invocation, which was difficult to reconcile with the provisions of article 19 of the Covenant. It was in particular concerned “that the notion of ‘threat to the State security’ may be used in such ways as to restrict freedom of expression”, that the permanent presence in the country of foreign media representatives was confined to journalists from three countries, and that foreign newspapers and publications were “not readily available to the public at large”. Lastly, the Committee observed that “DPRK journalists may not travel abroad freely”. It followed that the State party “should specify the reasons that have led to the prohibition of certain publications, and to refrain from measures that restrict the availability of foreign newspapers to the public”. The State party was further requested “to relax restrictions on the travel abroad by DPRK journalists, and to avoid any use of the notion of ‘threat to the State security’ that would repress freedom of expression contrary to article 19".140 The Committee emphasized “its deep concern about the numerous and serious infringements of the right to freedom of expression” in Belarus. “In particular, the fact that most publishing, distribution and broadcasting facilities are State owned, and that editors-in-chief of State-supported newspapers are State employees, effectively exposes the media to strong political pressure and undermines its independence.” The many restrictions imposed on the media, in particular the vaguely defined offences, were incompatible with article 19(3). Furthermore, the Committee expressed concern “about reports of harassment and intimidation of local and foreign journalists by authorities and the denial of access to public broadcasting facilities by political opponents to the Government”. It urged the State party “to take all necessary measures, legislative as well as administrative, in order to remove these restrictions on freedom of expression, which are incompatible with its obligations under article 19 ... as a matter of priority”.141 The Committee expressed concern that the mass media in Zimbabwe, “as well as many other forms of expression, including artistic expression, are subject to censorship and are largely controlled by the Government”. It recommended that the relevant law “be brought into strict compliance with article 19(3) of the Covenant”.142 Lastly, it was concerned about interference by the Government of Slovakia “in the direction of its State-owned television”, which “carries a danger of violating article 19”.143 The right to freedom of expression, including freedom of the press, as guaranteed by article 19 of the International Covenant on Civil and Political Rights, may have to be interpreted also in the light of other provisions of the Covenant, such as article 25 concerning the right to take part in the conduct of public affairs. The effective exercise of that right presupposes the free flow of information and ideas between citizens on public and political issues, including a free press and other media which are able to comment on public issues without censorship or restraint. The right of journalists to have access to information in accordance with article 19(2) of the Covenant implies, inter alia, that criteria for accreditation schemes must be specific, fair and reasonable, and that, for instance, there must be no arbitrary exclusion from access to parliamentary debates. The right to freedom of the press means that harassment of journalists is strictly prohibited under article 19 of the Covenant. Freedom of the press presupposes that journalists must be able to exercise their functions safely and to travel freely. Censorship and penalties against organs of the press constitute obstacles to the effective exercise of freedom of the press. Article 19(3) does not allow the use of vaguely defined offences for the imposition of restrictions on the mass media in order to silence criticism of the government.

3.2.7 Human rights defenders

The right to freedom of expression of human rights defenders is essential because if they are not allowed to express themselves freely, both orally and in written
or printed form, the very notion of effective human rights protection becomes illusory. When considering the second periodic report of the Syrian Arab Republic, the Committee stated that it remained concerned “that the activities of human rights defenders and of journalists who speak out for human rights remain subject to severe restrictions”. Referring to a specific case where a person was sentenced to 10 years’ imprisonment “for his non-violent expression of opinions critical of the authorities”, the Committee observed that “such restrictions are incompatible with freedom of expression and opinion” as guaranteed by article 19. The State party should therefore “protect human rights defenders and journalists against any restriction on their activities and ensure that journalists can exercise their profession without fear of being brought before the courts and prosecuted for having criticized government policy”.144 It is noteworthy in this context that the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by General Assembly resolution 53/144 of 9 December 1998, is specially designed to protect human rights defenders and guarantees to every person the right, among others (1) “to communicate with non-governmental or intergovernmental organizations”; (2) “to know, seek, obtain, receive and hold information about all human rights and fundamental freedoms”; and (3) “as provided for in human rights and other applicable international instruments, [the right] freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms” (arts. 5 and 6). The right to freedom of expression must be effectively guaranteed to all those who defend human rights and fundamental freedoms although their activities may imply criticism of government policies. The exercise of their freedom of expression must be restricted on no grounds other than those contained in the applicable international treaties.

3.3 Article 9 of the African Charter on Human and Peoples’ Rights

Article 9 of the African Charter on Human and Peoples’ Rights guarantees to every individual “the right to receive information” as well as “the right to express and
disseminate his opinions within the law”. It is noteworthy that the terms “within the law” are not conditioned by any other criteria such as an enumeration of legitimate purposes or the concept of necessity.

3.3.1 Freedom of the press

The case of Media Rights Agenda v. Nigeria concerned the trial and conviction of Mr.Malaolu, the editor of an independent Nigerian newspaper; Mr.Maloulu was found guilty by a Special Military Tribunal of the charge of concealment of treason and sentenced to life imprisonment. It was alleged before the African Commission on Human and Peoples’ Rights that article 9 of the Charter had been violated, since Mr. Malaolu had simply been punished for news stories published in his newspaper relating to an alleged coup d’état involving certain people. The Government argued, on the other hand, that Mr. Malaolu had been tried with a number of other people, including journalists, accused of involvement in the coup and that it was not, therefore, a case of victimization of the profession of journalist.145 The Commission took the view, however, that it was only Mr. Malaolu’s publication that had led to his arrest, trial and conviction and concluded that article 9 had been violated.146 Freedom of the press was again at issue in the case of the Constitutional Rights Project and Civil Liberties Organisation v. Nigeria which concerned, inter alia, the seizure of thousands of copies of magazines following protests by journalists and others against the annulment of elections. The News magazine was closed by a military Decree in June 1993. Prior to the closure, copies of the magazine had been seized by security agents and some of its editors were sought by the police. Thousands of copies of the weekly news magazine Tempo had likewise allegedly been confiscated. The Government justified these actions by referring to the “chaotic” situation reigning in the country after the elections were annulled.147 The Commission disagreed, and recalled the
general principle according to which States should not limit the exercise of rights by overriding constitutional provisions or undermine fundamental rights guaranteed by the constitution and international human rights standards. In its view, Governments “should avoid restricting rights, and take special care with regard to those rights protected by constitutional or international human rights law. No situation justifies the wholesale violation of human rights. In fact, general restrictions on rights diminish public confidence in the rule of law and are often counterproductive.”148 The Commission concluded that, given that Nigeria had all the traditional provisions for libel suits available to deal with violations of domestic law, the Government proscription of a specific publication was of particular concern; “laws made to apply to specifically one individual or legal entity [raised] the acute danger of discrimination and lack of equal treatment before the law as guaranteed by Article 2” of the Charter. The proscription of The News and the seizure of 50,000 copies of Tempo and The News therefore violated article 9 of the Charter.149

The African Commission considers, however, that “payment of a registration fee and a pre-registration deposit for payment of penalty or damages is not in itself
contrary to the right to the freedom of expression.” “However, the amount of the registration fee should not be more than necessary to ensure administrative expenses of the registration, and the pre-registration fee should not exceed the amount necessary to secure against penalties or damages against the owner, printer or publisher of the newspaper. Excessively high fees are essentially a restriction on the publication of news media.” In the case before the Commission, on the other hand, the fees concerned were high but “not so clearly excessive” as to constitute a “serious restriction”.150 The Commission was, however, more concerned about “the total discretion and finality of the decision of the registration board, which effectively gives the government the power to prohibit publication of any newspapers or magazines they choose. This invites censorship and seriously endangers the rights of the public to receive information” protected by article 9(1) of the Charter. There had thus been a breach of that article.151 With regard to the proscription of a newspaper in the same case, the Commission recalled that, according to article 9(2) of the African Charter, “every individual shall have the right to ... disseminate his opinions within the law”. In its view, “this does not mean that national law can set aside the right to express and disseminate one’s opinions; this would make the protection of the right to express one’s opinions ineffective.” Moreover, “international human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.”152 Furthermore, as the Charter does not contain a derogation clause, “limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances.”153 Indeed, “the only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27.2”, according to which “the rights and freedoms shall be exercised with due regard to the rights of others, collective security, morality and common interest.” “The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained.” In particular, “a limitation may never have as a consequence that the right itself becomes illusory.”154 Considering that, in this case, the Government had provided no evidence that the proscription of the newspaper The News could be justified on the grounds enumer