Essay
Individual and the State Problem Question ECHR
- Module
- Law (LAW1081)
- Institution
- Durham University (DUT)
Please advise John, Terence, and Tina on the likelihood of making a successful application to
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Name: Shania Phillips Word Count: 1502Module: LAW1081
Tutor: Ms Xinyue Li
Please advise John, Terence, and Tina on the likelihood of making a successful application
to the European Court of Human Rights under Article 10 ECHR. Please assume that all the
applicants have exhausted domestic remedies and that their claims are admissible.
The main issue before the Court is whether the Triland domestic courts’ interferences with
each applicant’s right to freedom of expression are necessary and proportionate in a
democratic society. Following the proportionality test, each of the applicants will be advised
on their likelihood of making a successful application to the European Court of Human
Rights under Article 10 ECHR.
Are the parties’ forms of expression protected under Article 10 ECHR?
As John is a playwright and political activist and Terrence is a theatrical director, their artistic
expressions are protected under article 10(1). Following Müller and Others v. Switzerland 1,
the play’s dissemination of cultural, political, and social ideas contribute to the exchange of
opinions and notions crucial for a democratic society. Thus, the state would be awarded a
wide margin of appreciation in determining appropriate limitations. However, regarding the
political activism constituent of their expression, which is safeguarded following Vereinigung
Bildender Künstler v Austria2, the state would be afforded a narrow margin of appreciation.
This is because the play contributes to the public debate through the satirical depiction of
contemporary life in Triland. Satire is also a mode of creative expression and social
commentary which naturally aims to agitate and provoke through its innate attributes of
hyperbole and the distortion of reality3. Correspondingly, any interference with satire must
be scrutinised carefully4.
Likewise, Tina’s journalism is highly protected by article 10. As noted in Kasabova v
Bulgaria5, the press acts a ‘public watchdog’ in society providing information to the public
1
Müller and Others v. Switzerland 10737/84 ECHR (1988)
2
Vereinigung Bildender Künstler v Austria 68354/01 ECHR (2007)
3
Guide to Article 10 of the Convention – Freedom of expression (2021) [188]
4
Ibid [188]
5
Kasabova v Bulgaria 22385/03 ECHR (2011)
1
, Name: Shania Phillips Word Count: 1502
Module: LAW1081
Tutor: Ms Xinyue Li
who are as equally as entitled to receive such material as journalists are to publish it. As the
newspaper article contributes to social and political public debate through the discussion of
the cancellation of the controversial play, Triland would again be given a narrow margin of
appreciation.
Interference
There have been numerous interferences with all the applicant’s freedom of expression.
Both John and Terrence are sentenced to a six-month imprisonment and a 500 Trilandese
fine, in addition to the cancellation of the play. Furthermore, John and Tina are sued in
defamation and there is an injunction against the publication of any further offensive
material.
Whether the interferences are justified depends on if they are proscribed by law, serve a
legitimate aim, and are considered necessary in a democratic society. All interferences will
be considered separately.
The Proportionality test
The imprisonment is proscribed by domestic law, namely the ‘Protection of the People from
Public Immorality Act’ of which John and Terrence were prosecuted for the offence of
‘offending public morality’. Although the imprisonment serves a legitimate aim to protect
public morality and the freedom of others, in examining proportionality, the interference is
greater than necessary to meet the pressing social need. Whilst a criminal response to
defamation is acceptable, it is required, following Morice v. France 6, that courts show
restraint in resorting to criminal proceedings, only being the last cause of action. Only in
exceptional circumstances, where other essential rights have been severely impaired, will
the imposition of imprisonment not violate Article 107. In this case, there is no justification
for imprisonment because such a sanction could have negative repercussions on both
6
Morice v. France 29369/10 ECHR (2015)
7
Guide to Article 10 of the Convention – Freedom of expression (2021) [255]
2
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