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LAWS10090 Constitutional Law Seminar 2 Semester 2 notes
- Module
- LAWS10090
- Institution
- The University Of Edinburgh (ED)
LAWS10090 Constitutional Law Seminar 2 Semester 2 notes
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Seminar 2 Semester 2Otto case
Facts: the applicant institute tried to show a film that offended the Catholic religion and the religious feelings
of the people of Tyrol, a region that consists of a large majority of Catholics in whose lives religion plays a very
important role. The authorities had banned the showing of the film in an art cinema and confiscated the film.
Complaint: the applicant claimed a violation of their freedom of speech under article 10 of the Convention.
Holding: the ECHR found no violation of article 10 of the Convention.
Reasoning: the interference with the applicant association's freedom of expression was prescribed by law but
the seizure and forfeiture of the film were aimed at `the protection of the rights of others', namely the right to
respect for one's religious feelings, and at ensuring religious peace. The Court assessed the conflicting interests
of the exercise of two fundamental freedoms guaranteed under the Convention and concluded that the
Austrian authorities did not overstep their margin of appreciation.
Hatton v UK
Article 8 protects the individual's right to respect for his or her private and family life, home and
correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an
individual is directly and seriously affected by noise or other pollution, an issue may arise under Art.8 . Thus, in
Powell and Rayner v United Kingdom , 10 where the applicants had complained about disturbance from daytime
aircraft noise, the Court held that Art.8 was relevant, since “the quality of [each] applicant's private life and the
scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by *634
aircraft using Heathrow Airport”. Similarly, in López Ostra v Spain , 11 the Court held that Art.8 could include a
right to protection from severe environmental pollution, since such a problem might “affect individuals' well-
being and prevent them from enjoying their homes in such a way as to affect their private and family life
adversely, without, however, seriously endangering their health”. In Guerra v Italy , 12 which, like López Ostra ,
concerned environmental pollution, the Court observed that “[the] direct effect of the toxic emissions on the
applicants' right to respect for their private and family life means that Art.8 is applicable”. 13
97 At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national
authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle
better placed than an international court to evaluate local needs and conditions. 14 In matters of general policy,
on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy
maker should be given special weight.
Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether
State responsibility arises from the failure properly to regulate private industry. Whether the case is analysed
in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants'
rights under para.1 of Art.8 or in terms of an interference by a public authority to be justified in accordance
with para.2 , the applicable principles are broadly similar. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be
taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations
flowing from the first paragraph of Art.8 , in striking the required balance the aims mentioned in the second
paragraph may be of a certain relevance. 16
, 99 The Court considers that in a case such as the present, involving State decisions affecting environmental
issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess
the substantive merits of the Government's decision, to ensure that it is compatible with Art.8 . Secondly, it
may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of
the individual.
100 In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of
appreciation. In Powell and Rayner , for example, it asserted that it was “certainly not for the Commission or
the Court to substitute for the assessment of the national authorities any other assessment of what might be
the best policy in this difficult social and technical sphere”, namely the regulation of excessive aircraft noise
and the means of redress to be provided to the individual within the domestic legal system. The Court
continued that “this is an area where *635 the Contracting States are to be recognised as enjoying a wide
margin of appreciation”
The Court is thus faced with conflicting views as to the margin of appreciation to be applied: on the one hand,
the Government claim to a wide margin on the ground that the case concerns matters of general policy, and,
on the other hand, the applicants' claim that where the ability to sleep is affected, the margin is narrow
because of the “intimate” nature of the right protected. This conflict of views on the margin of appreciation
can be reconciled only by reference to the context of a particular case.
104 In connection with the procedural element of the Court's review of cases involving environmental issues,
the Court is required to consider all the procedural aspects, including the type of policy or decision involved,
the extent to which the views of individuals (including the applicants) were taken into account throughout the
decision-making procedure, and the procedural safeguards available.
The Chamber's judgment
105 The Chamber found that, overall, the level of noise during the hours 11.30pm to 6am had increased under
the 1993 Scheme. It considered that, in permitting increased levels of noise from 1993 onwards, the
Government had failed to respect their positive obligation to the applicants, through omitting, either directly
or through the commissioning of independent research, critically to assess the importance of the contribution
of night flights to the UK economy. The Chamber further criticised the Government for carrying out only
limited research into the effects of night flights on local residents prior to the introduction of the 1993 Scheme,
noting that the 1992 sleep study was limited to sleep disturbance and made no mention of the problem of
sleep prevention. The Chamber did not accept that the “modest” steps taken to mitigate night noise under the
1993 Scheme were capable of constituting “the measures necessary” to protect the applicants. It concluded
that:
“in the absence of any serious attempt to evaluate the extent or impact of the interferences with the
applicants' sleep patterns, and generally in the absence of a prior specific and complete study with the aim of
finding the least onerous solution as regards human rights, it is not possible to agree that in weighing the
interferences against the economic interest of the country (which itself had not been quantified) the
Government struck the right balance in setting up the 1993 Scheme”. *
The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not
specifically addressed to the applicants in this case, although it had obvious consequences for them and other
persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into
an aspect of private life in a manner comparable to that of the criminal measures considered in the case of
Dudgeon to call for an especially narrow scope for the State's margin of appreciation. 36 Rather, the normal
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