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The European Convention on Human Rights and the supreme court in matters relating to its jurisdiction, the European Court of Human Rights, are no longer a matter of external control, following their incorporation into domestic law via the Human Rights Act 1998. The European Convention on Human Rights provides that the judgement of ECHR shall be final and that parties to it will abide by the Court’s decisions. The institution resides in Strasbourg and is responsible for all matters relating to the interpretation and application of the Convention. In relation to the ‘necessary in a democratic society’ provision, five of the Convention’s Articles specify the phrase in their text, although it is assumed that the Convention as a whole upholds its importance. This essay examines the European Court of Human Rights (hereinafter ECHR) and its interpretation, and relative importance, of the phrase, ‘necessary in a democratic society’ in relation to the Convention. Due to limitations in word count, the contents of this essay are not exhaustive.
The inception of communications has seemingly created an increase in challenges relating to Article 8 of the Convention. In Malone v UK, the ECHR found a breach of Article 8 of the Convention, relating to the right of privacy. More specifically, it was found that telephone tapping by the police and authorised by the UK Government and condoned by the High Court was in breach of right to privacy, contained in Article 8 of the Convention. This Article provides:
There shall be no interference by a public authority with the exercise of this right except such as is accordance with the law and is necessary in a democratic society in the interests of national security.
It was held by the ECHR that tapping was against the Convention because it was not in accordance with law but governed by an unregulated decision. The reason why it could not be necessary in a democratic society was that there were no constitutional safeguards against misuse of the power. The Court concluded that the law was unclear and stated that, ‘the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.’ This case thus initiated new Government legislation to control telephone tapping by the police. The legislation comes in way of the Interception of Communications Act 1985 which limits telephone tapping to cases where the Home Secretary has issued a warrant and, to safeguard against arbitrary use, the warrant can only be issued in three distinct circumstances, one being serious crime. Furthermore, a tribunal and Commissioner will review how the Home Secretary has exercised his powers on an annual basis. The main findings of this case were reiterated in Kruslin v France and Huvig v France, where it was decided that there were insufficient safeguards in the law and that, accordingly, the Convention was violated.
A very different approach was reached by the court in Klass v Federal Republic of Germany. In that case, German legislation was challenged for authorising the inception of mail and telecommunications. It was held that, whilst the right to privacy was infringed, the inceptions were justified due to the ‘necessary in a democratic society’ provision, contained in paragraph 2. It was said that surveillance of citizens was legitimate to the extent that it was ‘safeguarding the democratic institutions’ of the State. As there were no adequate guarantees against abuse, Article 8 was not violated. It can be observed from these cases that their relationship to Article 8 of the Convention is markedly similar, yet, they have been decided differently. The cases symbolise the importance of the phrase relating to the necessity of a democratic society but show how, according to its own discretion, the court can manipulate the case one of two ways: either by stating the importance of a democratic society in safeguarding the State and thus authorising the surveillance of citizens, or; offering protection to the same citizens because this is what is needed in a democratic society. It seems that the cases were decided upon according to the likelihood of relative threat, as the Convention states, ‘in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
Article 10 of the Convention provides for the right to freedom of expression. These freedoms are subject to ‘formalities, conditions, restrictions and penalties, as are prescribed by law and necessary in a democratic society.’ At this point, it is perhaps worthwhile to note that the ECHR applies what is known as the margin of appreciation, so that Member States have a measure of national discretion in the way they give effect to general standards set out in the Convention. An example is the ECHR’s decision in favour of the United Kingdom’s decision to ban the film, Visions of Ecstasy, under its blasphemy law, in spite of the Director’s claim that it violated his right to freedom of speech. The Court ruled by seven votes to two that the refusal of the Director’s claim was justified under Article 10(2) as being necessary in a democratic society. The Board of Film Classification believed that the film would infringe the criminal law of blasphemy. It was stated however that although the law of blasphemy did not treat all religions equally, it did not detract from the legitimacy of the Director’s aim, and it was consistent with the aims of Article 9 of the Convention. The Court ruled that while the law of blasphemy was invoked rarely, there was not sufficient consensus with Member States to conclude that the blasphemy legislation was ‘unnecessary in a democratic society and incompatible with the Convention.’ The restriction was justified on the basis of excessive interference to Christians, which could amount to blasphemy.
The United Kingdom’s record in relation to cases taken against it in the ECHR is not promising. In 2000, the United Kingdom came second to Turkey in this vein. These decisions are extremely important because they are now binding precedents in the law of the United Kingdom. Although the case of Wingrove may have pleased the United Kingdom with the imposition of the margin of appreciation, there have been a number of controversial cases in which the decisions have gone against it. One example was the decision that the rights of suspected IRA terrorists had been violated by their summary execution in Gibralter. It follows that the ‘necessary in a democratic society’ provision, is capable of being argued either way.
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