The burgeoning minority rights jurisprudence of the European Court of Human Rights

Human Rights Quarterly

Volumn 24, Issue 3, 2002, Pages 736-780

  Gilbert, Geoff ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0043281141     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2002.0034     Document Type: Article

References (230)

1. Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 28 Apr. 1983, art. 1, Europ. T.S. 177, 33 I.L.M. 943 (1994) (entered into force 1 Nov. 1998), abolished the former European Commission of Human Rights, although a few cases still in the pipeline were heard in 1999. No attempt is made here to examine the completely separate jurisprudence of the European Court of Justice of the European Communities with respect to freedom of movement of workers, goods and services, as it impinges on minority rights, particularly language and the cultural identity of teachers: see arts. 39, 43, 49 & 12 EC Treaty, & Reg. 1612/68. See Groener v. Minister for Educ. and City of Dublin Vocational Educ. Comm. , 1 COMMON MKT. L. REP. 401, ¶ 20 & 21 (1990); Ministere Pub. v. Mutsch, 1 COMMON MKT. L. REP. 648 (1985); Comm'n v. Luxembourg, 3 COMMON MKT. L. REP. 981, ¶¶ 32-36 (1996). See also Written Question on State Language Laws P-3108/00 by Gorka Knörr Borràs (Verts/ALE) to the Council, 2001 O.J. C. 174) E/19. I am indebted to my colleague Lorna Woods for this information. An effort herein has been made to cite to the European Court of Human Rights in the EUROPEAN HUMAN RIGHTS REPORTS and the Court of Justice of the European Communities in the COMMON MARKET LAW REPORTS. However, due to the recent nature of the jurisprudence discussed in this article, it has not been possible to cite to published reporter volumes for a great number of these cases. In those citations where no reporter has been cited, application numbers and other relevant source information has been provided. Those cases can be accessed using the European Court of Human Rights HUDOC database, available at 〈http://hudoc.echr.coe.int/hudoc/default.asp〉. The quickest way to search this website is through the application number of each case.
2. Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 28 Apr. 1983, art. 1, Europ. T.S. 177, 33 I.L.M. 943 (1994) (entered into force 1 Nov. 1998), abolished the former European Commission of Human Rights, although a few cases still in the pipeline were heard in 1999. No attempt is made here to examine the completely separate jurisprudence of the European Court of Justice of the European Communities with respect to freedom of movement of workers, goods and services, as it impinges on minority rights, particularly language and the cultural identity of teachers: see arts. 39, 43, 49 & 12 EC Treaty, & Reg. 1612/68. See Groener v. Minister for Educ. and City of Dublin Vocational Educ. Comm. , 1 COMMON MKT. L. REP. 401, ¶ 20 & 21 (1990); Ministere Pub. v. Mutsch, 1 COMMON MKT. L. REP. 648 (1985); Comm'n v. Luxembourg, 3 COMMON MKT. L. REP. 981, ¶¶ 32-36 (1996). See also Written Question on State Language Laws P-3108/00 by Gorka Knörr Borràs (Verts/ALE) to the Council, 2001 O.J. C. 174) E/19. I am indebted to my colleague Lorna Woods for this information. An effort herein has been made to cite to the European Court of Human Rights in the EUROPEAN HUMAN RIGHTS REPORTS and the Court of Justice of the European Communities in the COMMON MARKET LAW REPORTS. However, due to the recent nature of the jurisprudence discussed in this article, it has not been possible to cite to published reporter volumes for a great number of these cases. In those citations where no reporter has been cited, application numbers and other relevant source information has been provided. Those cases can be accessed using the European Court of Human Rights HUDOC database, available at 〈http://hudoc.echr.coe.int/hudoc/default.asp〉. The quickest way to search this website is through the application number of each case.
3. Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 28 Apr. 1983, art. 1, Europ. T.S. 177, 33 I.L.M. 943 (1994) (entered into force 1 Nov. 1998), abolished the former European Commission of Human Rights, although a few cases still in the pipeline were heard in 1999. No attempt is made here to examine the completely separate jurisprudence of the European Court of Justice of the European Communities with respect to freedom of movement of workers, goods and services, as it impinges on minority rights, particularly language and the cultural identity of teachers: see arts. 39, 43, 49 & 12 EC Treaty, & Reg. 1612/68. See Groener v. Minister for Educ. and City of Dublin Vocational Educ. Comm. , 1 COMMON MKT. L. REP. 401, ¶ 20 & 21 (1990); Ministere Pub. v. Mutsch, 1 COMMON MKT. L. REP. 648 (1985); Comm'n v. Luxembourg, 3 COMMON MKT. L. REP. 981, ¶¶ 32-36 (1996). See also Written Question on State Language Laws P-3108/00 by Gorka Knörr Borràs (Verts/ALE) to the Council, 2001 O.J. C. 174) E/19. I am indebted to my colleague Lorna Woods for this information. An effort herein has been made to cite to the European Court of Human Rights in the EUROPEAN HUMAN RIGHTS REPORTS and the Court of Justice of the European Communities in the COMMON MARKET LAW REPORTS. However, due to the recent nature of the jurisprudence discussed in this article, it has not been possible to cite to published reporter volumes for a great number of these cases. In those citations where no reporter has been cited, application numbers and other relevant source information has been provided. Those cases can be accessed using the European Court of Human Rights HUDOC database, available at 〈http://hudoc.echr.coe.int/hudoc/default.asp〉. The quickest way to search this website is through the application number of each case.
4. Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 28 Apr. 1983, art. 1, Europ. T.S. 177, 33 I.L.M. 943 (1994) (entered into force 1 Nov. 1998), abolished the former European Commission of Human Rights, although a few cases still in the pipeline were heard in 1999. No attempt is made here to examine the completely separate jurisprudence of the European Court of Justice of the European Communities with respect to freedom of movement of workers, goods and services, as it impinges on minority rights, particularly language and the cultural identity of teachers: see arts. 39, 43, 49 & 12 EC Treaty, & Reg. 1612/68. See Groener v. Minister for Educ. and City of Dublin Vocational Educ. Comm. , 1 COMMON MKT. L. REP. 401, ¶ 20 & 21 (1990); Ministere Pub. v. Mutsch, 1 COMMON MKT. L. REP. 648 (1985); Comm'n v. Luxembourg, 3 COMMON MKT. L. REP. 981, ¶¶ 32-36 (1996). See also Written Question on State Language Laws P-3108/00 by Gorka Knörr Borràs (Verts/ALE) to the Council, 2001 O.J. C. 174) E/19. I am indebted to my colleague Lorna Woods for this information. An effort herein has been made to cite to the European Court of Human Rights in the EUROPEAN HUMAN RIGHTS REPORTS and the Court of Justice of the European Communities in the COMMON MARKET LAW REPORTS. However, due to the recent nature of the jurisprudence discussed in this article, it has not been possible to cite to published reporter volumes for a great number of these cases. In those citations where no reporter has been cited, application numbers and other relevant source information has been provided. Those cases can be accessed using the European Court of Human Rights HUDOC database, available at 〈http://hudoc.echr.coe.int/hudoc/default.asp〉. The quickest way to search this website is through the application number of each case.
5. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5 (entered into force 3 Sept. 1953) [hereinafter European Convention].
6. Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), reprinted in 6 I.L.M. 383 (1967); International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter ICCPR]. In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. ICCPR at art. 27.
7. Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), reprinted in 6 I.L.M. 383 (1967); International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter ICCPR]. In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. ICCPR at art. 27.
8. Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), reprinted in 6 I.L.M. 383 (1967); International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter ICCPR]. In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. ICCPR at art. 27.
9. See Denizci v. Cyprus, 25316-25321/94 & 27207/95, Eur. Ct. Hum. Rts. (Fourth Section), ¶ 410 (2001) (emphasis added).
10. See Recommendation 1255 (1995), ¶ 3. The Parliamentary Assembly has reasserted the need for a protocol to the European Convention on the rights of national minorities in 2001. See Council of Europe Press Service, Press Release, 24 Jan. 2001.
11. See The Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, 34 I.L.M. 351 (1995) reprinted in 16 HUM. RTS. L.J. 98 (1995); see also Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 HUM. RTS. L.J. 92 (1995). There is also The European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Council of Europe Europ T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993), but that does not provide individual rights. Nevertheless, the Committee of Ministers can make recommendations and did so with respect to Hungary on 8 October 2001, proposing that Hungary establish a policy to develop Romani and Beas languages in public life, strengthen the possibility of using a minority language before the courts and with the administration, and develop teaching in and of minority languages.
12. See The Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, 34 I.L.M. 351 (1995) reprinted in 16 HUM. RTS. L.J. 98 (1995); see also Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 HUM. RTS. L.J. 92 (1995). There is also The European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Council of Europe Europ T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993), but that does not provide individual rights. Nevertheless, the Committee of Ministers can make recommendations and did so with respect to Hungary on 8 October 2001, proposing that Hungary establish a policy to develop Romani and Beas languages in public life, strengthen the possibility of using a minority language before the courts and with the administration, and develop teaching in and of minority languages.
13. See The Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, 34 I.L.M. 351 (1995) reprinted in 16 HUM. RTS. L.J. 98 (1995); see also Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 HUM. RTS. L.J. 92 (1995). There is also The European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Council of Europe Europ T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993), but that does not provide individual rights. Nevertheless, the Committee of Ministers can make recommendations and did so with respect to Hungary on 8 October 2001, proposing that Hungary establish a policy to develop Romani and Beas languages in public life, strengthen the possibility of using a minority language before the courts and with the administration, and develop teaching in and of minority languages.
14. See The Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, 34 I.L.M. 351 (1995) reprinted in 16 HUM. RTS. L.J. 98 (1995); see also Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 HUM. RTS. L.J. 92 (1995). There is also The European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Council of Europe Europ T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993), but that does not provide individual rights. Nevertheless, the Committee of Ministers can make recommendations and did so with respect to Hungary on 8 October 2001, proposing that Hungary establish a policy to develop Romani and Beas languages in public life, strengthen the possibility of using a minority language before the courts and with the administration, and develop teaching in and of minority languages.
15. See The Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, 34 I.L.M. 351 (1995) reprinted in 16 HUM. RTS. L.J. 98 (1995); see also Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 HUM. RTS. L.J. 92 (1995). There is also The European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Council of Europe Europ T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE EXPLANATORY REPORT -EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993), but that does not provide individual rights. Nevertheless, the Committee of Ministers can make recommendations and did so with respect to Hungary on 8 October 2001, proposing that Hungary establish a policy to develop Romani and Beas languages in public life, strengthen the possibility of using a minority language before the courts and with the administration, and develop teaching in and of minority languages.
16. On the lack of a definition, see generally Geoff Gilbert, The Council of Europe and Minority Rights, 18 HUM. RTS. Q. 160, 161-70 (1996). See also John Packer On the Definition of Minorities, in THE PROTECTION OF ETHNIC AND LINGUISTIC MINORITIES IN EUROPE 23 (John Packer & Kristian Myntti eds., 1993): It has been correctly observed that international law supposes the existence of minorities both in general and of specific types. However, while the existence of human beings and states are "axiomatic" in international law, the existence of human groups is problematic. Conceptually, interntional law struggles with the definitions of actors beyond the "State"; indeed the problem of defining actors has always troubled political theory in general and international relations in particular. . . . [While] the catalogue and content of individual human rights has become relatively clear, the specificity of protections for groups, particularly minorities, has remained largely uncertain. Paramount among this uncertainty has been the very definition of "the" or "a minority" to whom any rights may accrue. Id. at 23.
17. On the lack of a definition, see generally Geoff Gilbert, The Council of Europe and Minority Rights, 18 HUM. RTS. Q. 160, 161-70 (1996). See also John Packer On the Definition of Minorities, in THE PROTECTION OF ETHNIC AND LINGUISTIC MINORITIES IN EUROPE 23 (John Packer & Kristian Myntti eds., 1993): It has been correctly observed that international law supposes the existence of minorities both in general and of specific types. However, while the existence of human beings and states are "axiomatic" in international law, the existence of human groups is problematic. Conceptually, interntional law struggles with the definitions of actors beyond the "State"; indeed the problem of defining actors has always troubled political theory in general and international relations in particular. . . . [While] the catalogue and content of individual human rights has become relatively clear, the specificity of protections for groups, particularly minorities, has remained largely uncertain. Paramount among this uncertainty has been the very definition of "the" or "a minority" to whom any rights may accrue. Id. at 23.
18. Gorzelik and Others v. Poland 44158/98, Eur. Ct. Hum. Rts. (Fourth Section), 17 May 2001 (admissibility).
19. Gorzelik and Others, Merits, ¶ 62.
20. In Magee v. United Kingdom, 31 EUR. HUM. RTS. REP. 35 (2001), the Court held that the difference in treatment the applicant suffered was based on geographic location not national origin or association with a national minority. The United Kingdom constitutes three separate criminal jurisdictions (England and Wales, Scotland, and Northern Ireland), and the fact that there were allegedly different rules on the procedure for interviewing suspects in Northern Ireland with a consequently detrimental effect on the applicant was due to his geographic location within the United Kingdom, not the fact he was a member of the nationalist minority. Id. at ¶ 50.
21. Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), 1 EUR. HUM. RTS. REP. 252 (1968).
22. See Velikova v. Bulgaria, 41488/98, Eur. Ct. Hum. Rts. (Fourth Section), 18 May 2000, at ¶ 94.
23. See Rait Oglu v. Greece, 33738/96, Eur. Ct. Hum. Rts. (Third Section), 27 June 2000.
24. Muonio Saami Village v. Sweden, 28222/95, Eur. Ct. Hum. Rts. (First Section), 15 Feb. 2000, ¶ 12.
25. Id. (generally).
26. Metro. Church of Bessarabia and others v. Moldova 45701/99, Eur. Ct. Hum. Rts. (former First Section), 13 Dec. 2001, ¶ 101 (at time of writing, this judgment was only available in French).
27. Noack v. Germany, 46346/99, Eur. Ct. Hum. Rts. (Fourth Section), 25 May 2000.
28. Sorbs are ethnic Slavs.
29. Noack, supra note 17, at The Law §1. See also, Association des amis de Saint-Raphaël et de Fréjus v. France, 45053/98, Eur. Ct. Hum. Rts. (Third Section), 29 Feb. 2000.
30. See Grande Oriente D'Italia di Palazzo Giustiniani v. Italy, 34 EUR. HUM. RTS. REP. 22 (2001); Ekin v. France, 39288/98, Eur. Ct. Hum. Rts. (Third Section), 18 Jan. 2000 & 17 July 2001. At time of writing, both cases are only available in French.
31. This article does not address all cases where members of minorities were victims of violations. It instead provides an analysis of those decisions which relate to the minority rights of the minority.
32. Tsarknias v. Greece, 45629/99, Eur. Ct. Hum. Rts. (Second Section), 30 Mar. 1999.
33. As of 31 Dec. 2001, twenty-six states had signed the Protocol, but only Georgia had ratified.
34. Arts. 1 & 2. Although Article 1 of Protocol 12 is aimed in the first instance against discrimination perpetrated by the state through laws or the actions of public authorities, including courts, the reference to the "enjoyment" of rights being "secured" indicates there is a positive obligation upon states to ensure that steps are taken to prevent discrimination as between private persons. One can immediately recognize that it would extend to private operators carrying out functions ordinarily run by the state, such as the provision of the major utilities, electricity, water and gas, but would it cover telecommunications, housing, or banking? And what if a state had no law prohibiting employers from discriminating during the hiring process?
35. Protocol 12 does not develop the scope of the concept of discrimination in Convention jurisprudence. It should be noted in passing that if a breach of the substantive right had already been found, the Court would often hold that it had no need to see if there had been a violation in conjunction with Article 14 - the Court will not have that option following the implementation of Protocol 12. Cf. For the opposite and much rarer scenario, however, see Thlimmenos v. Greece, 31 EUR. HUM. RTS. REP. 15, ¶ 53 (2001).
36. Case of the Jewish Liturgical Ass'n Cha'are Shalom Ve Tsedek v. France, 27417/95, Eur. Ct. Hum. Rts. (Grand Chamber), 27 June 2000, at ¶ 86. See also Thlimmenos, supra note 25, at ¶ 40.
37. See Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, supra note 11, at 34. In spite of the very general wording of the French version ("sans distinction aucune"), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognized. This version must be read in the light of the more restrictive text of the English version ("without discrimination"). It is important, then, to look for the criteria which enable a determination to be made as to whether or not a difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14. On this question the Court, following the principles which may be extracted from the legal practice of a large number of democratic states, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. Id. See also Case of Larkos v. Cyprus, 30 EUR. HUM. RTS. REP. 597, ¶ 29 (2000) and Jewish Liturgical Ass'n, supra note 26, ¶ 87-cf. dissent, ¶ 2.
38. Murdock v. United Kingdom, 44934/98, Eur. Ct. Hum. Rts. (Third Section), 25 Jan. 2000.
39. See the Northern Ireland (Sentences) Act 1998. In general, see Geoff Gilbert, The Northern Ireland Peace Agreement, Minority Rights and Self Determination, 47 INT'L & COMP. L.Q. 943 (1998).
40. Murdock, supra note 28, at The Law, § 1.
41. United Christian Broad. Ltd. v. United Kingdom 44802/98, Eur. Ct. Hum. Rts. (Third Section), 7 Nov. 2000.
42. Id. at The Law, § 1.
43. 29 EUR. HUM. RTS. REP. 615 (2000).
44. Id. at 620.
45. Kasim Aydin, Cemal Aydin, Sultan Aydin et al., 28293, 29494/95 and 30219/96, Eur. Ct. Hum. Rts. (First Section), 1 Feb. 2000.
46. Id. at The Law, §4. A friendly settlement was approved by the Court on 10 July 2000 -it did not explicitly address the Article 18 issue.
47. A complaint might also be possible under Article 2 of Protocol 4 to the European Convention, Europ. T.S. 46: Article 2: 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of "ordre public," for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interests in a democratic society. See Denizci, supra note 4, where the respondent Greek Cypriot government was found to be in breach for having expelled Turkish Cypriots to Northern Cyprus.
48. See Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, supra 11, at 61-71.
49. Anguelova v. Bulgaria, 38361/97, Eur. Ct. Hum. Rts. (Fourth Section), 6 June 2000. See also Moldovan, Rostas et al. v. Romania, 41138/98 and 64320/01, Eur. Ct. Hum. Rts. (First Section) 13 Mar. 2001 (admissibility); Kalin v. Turkey, 31236/96, Eur. Ct. Hum. Rts (Third Section), 4 Sept. 2001, where the Court held there was a case to answer with respect to Article 14 taken together with Articles 6 and 10 - the applicant alleged there was an administrative practice of discrimination based on ethnic origin (at time of writing, this admissibility decision was only available in French).
50. Ansuelova, supra note 39, at The Law, § 6.
51. See T.G. Hadjithomas, Hadjithoma, Hadjithoma-Hapeshi, N.T. Hadjithomas, Antoniou-Hadjithoma & Thomas, Christoforos, Andreas & Savvas Hadjithomas v. Turkey, 39970/ 98 Eur. Ct. Hum. Rts. (First Section) 11 Jan. 2000; Lordos v. Turkey, 15973/90, Eur. Ct. Hum Rts. (Third Section), 27 June 2000; Skyropiia Yialias Ltd v. Turkey, 47884/99 Eur. Ct. Hum. Rts. (First Section), 26 Sept. 2000; Gavriel v. Turkey, 41355/98, Eur. Ct. Hum. Rts (Third Section), 1 Feb. 2000; Michael P. Hapeshis & Maria Hapeshi-Michaelidou v. Turkey 35214/97, Eur. Ct. Hum. Rts. (Third Section), 8 Feb. 2000.
52. Hadjithomas et al., supra note 41, at The Law.
53. 32957/96 Eur. Ct. Hum. Rts. (Third Section), 5 Sept. 2000.
54. E. African Asians v. United Kingdom, Y.B. EUR. CONV. ON H.R. 928, 994 (1970); 3 EUR. HUM. RTS. REP. 76 (1981).
55. E. African Asians v. United Kingdom, Y.B. EUR. CONV. ON H.R. 928, 994 (1970); 3 EUR. HUM. RTS. REP. 76 (1981).
56. Cyprus v. Turkey 24781/94, Eur. Comm'n Hum. Rts., adopted 4 June 1999, ¶ 499; Eur. Ct. Hum. Rts. (Grand Chamber), 10 May 2001, ¶¶ 310-11.
57. Cyprus Grand Chamber, supra note 45, ¶ 309.
58. The Framework Convention for the Protection of National Minorities, supra note 6, at art. 18.
59. See, e.g., The Hungaro-Slovak Treaty on Good Neighbourliness and Friendly Cooperation, 1995, and the Hungaro-Romanian Treaty on Understanding, Co-operation and Good Neighbourhood, 1996, 36 I.L.M. 340 (1997).
60. See Geoff Gilbert, The Council of Europe and Minority Rights, 18 HUM. RTS. Q. 160 (1996).
61. See author's comments of November 1998 to Chair-Rapporteur of the UN Working Group Minorities, Professor Asbørn Eide, reflected in U.N. Doc. E/C.4/Sub.2/AC.5/N 1999.WP.1.
62. European Commission for Democracy Through Law (Venice Commission), Report on the Preferential Treatment of National Minorities by their Kin-State, CDL-INF (2001) 19, Strasbourg, 22 Oct. 2001, at §D, available at 〈http://www.venice.coe.int/site/interface/ english.htm〉 (last visited 30 Apr. 2002).
63. Id.
64. As recognized by this author in 1992 - see Geoff Gilbert, The Legal Protection Accorded to Minority Groups in Europe, 23 NETH. YB. INT'L L. 67, at 86 (1992). For an early example, see Christians Against Racism and Facism v. United Kingdom, 8400/78, 21 EUR. COMM'N H.R. DEC. & REP. 138, 152 (1980).
65. As recognized by this author in 1992 - see Geoff Gilbert, The Legal Protection Accorded to Minority Groups in Europe, 23 NETH. YB. INT'L L. 67, at 86 (1992). For an early example, see Christians Against Racism and Facism v. United Kingdom, 8400/78, 21 EUR. COMM'N H.R. DEC. & REP. 138, 152 (1980).
66. Thlimmenos (Grand Chamber) supra note 25, ¶¶ 42 et seq.
67. Id. at 44.
68. Sanli and Erol v. Turkey 15919/89, Eur. Ct. Hum. Rts. (Second Section), 30 Nov. 2000.
69. Id. ¶¶ 49-52. See also Chapman v. United Kingdom, 33 EUR. HUM. RTS. REP. 18, ¶ 129 (2001); Smith v. United Kingdom, 33 EUR. HUM. RTS. REP. 30 (2001); Lee v. United Kingdom, 33 EUR. HUM. RTS. REP. 29 (2001); Beard v. United Kingdom, 33 EUR. HUM. RTS. REP. 19 (2001); Coster v. United Kingdom, 33 EUR. HUM. RTS. REP. 20 (2001).
70. Id. ¶¶ 49-52. See also Chapman v. United Kingdom, 33 EUR. HUM. RTS. REP. 18, ¶ 129 (2001); Smith v. United Kingdom, 33 EUR. HUM. RTS. REP. 30 (2001); Lee v. United Kingdom, 33 EUR. HUM. RTS. REP. 29 (2001); Beard v. United Kingdom, 33 EUR. HUM. RTS. REP. 19 (2001); Coster v. United Kingdom, 33 EUR. HUM. RTS. REP. 20 (2001).
71. Id. ¶¶ 49-52. See also Chapman v. United Kingdom, 33 EUR. HUM. RTS. REP. 18, ¶ 129 (2001); Smith v. United Kingdom, 33 EUR. HUM. RTS. REP. 30 (2001); Lee v. United Kingdom, 33 EUR. HUM. RTS. REP. 29 (2001); Beard v. United Kingdom, 33 EUR. HUM. RTS. REP. 19 (2001); Coster v. United Kingdom, 33 EUR. HUM. RTS. REP. 20 (2001).
72. Id. ¶¶ 49-52. See also Chapman v. United Kingdom, 33 EUR. HUM. RTS. REP. 18, ¶ 129 (2001); Smith v. United Kingdom, 33 EUR. HUM. RTS. REP. 30 (2001); Lee v. United Kingdom, 33 EUR. HUM. RTS. REP. 29 (2001); Beard v. United Kingdom, 33 EUR. HUM. RTS. REP. 19 (2001); Coster v. United Kingdom, 33 EUR. HUM. RTS. REP. 20 (2001).
73. Id. ¶¶ 49-52. See also Chapman v. United Kingdom, 33 EUR. HUM. RTS. REP. 18, ¶ 129 (2001); Smith v. United Kingdom, 33 EUR. HUM. RTS. REP. 30 (2001); Lee v. United Kingdom, 33 EUR. HUM. RTS. REP. 29 (2001); Beard v. United Kingdom, 33 EUR. HUM. RTS. REP. 19 (2001); Coster v. United Kingdom, 33 EUR. HUM. RTS. REP. 20 (2001).
74. 36760/97, Eur. Ct. Hum. Rts. (First Section), 17 Oct. 2000; Friendly Settlement, 22 May 2001.
75. Id. at The Law, B. Merits, § 2.
76. Mutlu and Yildiz v. Turkey, 30495/96, Eur. Ct. Hum. Rts. (First Section), 17 Oct. 2000 -it was eventually the subject of a friendly settlement as regards those claims deemed admissible: 10 July 2001.
77. Kalin, Gezer and Tebay v. Turkey 24849/94, 24850/94 & 24941/94, Eur. Ct. Hum. Rts. (First Section), 18 Jan. 2000.
78. Mutlu and Yildiz, supra note 60, The Facts and The Law, B. Merits § 2; Kalin, Gezer and Tebay supra note 61, The Facts and The Law, B. Merits, § 3.
79. Mutlu and Yildiz, supra note 60, The Facts and The Law, B. Merits § 2; Kalin, Gezer and Tebay supra note 61, The Facts and The Law, B. Merits, § 3.
80. Shanaghan v. United Kingdom 37715/97, Eur. Ct. Hum. Rts. (Third Section), 4 Apr. 2000. See also, Jordan v. United Kingdom, 24746/94; McKerr v. United Kingdom, 34 EUR. HUM. RTS. REP. 20 (2002).
81. Kelly et al. v. United Kingdom, 30054/96, Eur. Ct. Hum. Rts. (Third Section), 4 Apr. 2000.
82. Id. at The Law.
83. Shanaghan v. United Kingdom, 37715/97, Eur. Ct. Hum. Rts. (Third Section), 4 May 2001; Kelly v. United Kingdom, 30054/96, Eur. Ct. Hum. Rts. (Third Section), 4 May 2001.
84. Shanaghan, supra note 65, ¶ 129. Equally, in Nerva v. United Kingdom, the Court held there could be indirect discrimination, in this case in relation to the then minimum wage laws under Part II of the Wages Act 1986. The applicants were employed as waiters and were guaranteed a minimum wage under the then United Kingdom law. The question was whether tips left by customers could count towards that minimum wage or whether tips should be seen as the property of the waiter and not part of the employer's monies out of which to meet staff costs. In the United Kingdom courts, the applicants had lost their claim. Part of the claim that was declared admissible is that the impugned decision of the United Kingdom courts is discrimatory since the applicants, as waiters, are treated less favorably than employees in other service industries not subject to those minimum wage laws, contrary to Article 1 of Protocol 1 to the European Convention taken together with Article 14. The applicants assert that while the United Kingdom court's decision on tips applied to any worker in a service industry, "Part II of the Wages Act 1986 applied only to those industries and workers whose terms and conditions were governed by wages councils, such as shops, hotels, restaurants, and public houses - businesses which typically employ high levels of ethnic minorities and immigrants labour." The decision on the merits in Nerva could be the one to open up a new avenue of jurisprudence in Strasbourg to minority groups who effectively suffer discrimination from apparently neutral laws. 42295/98, Eur. Ct. Hum. Rts. (Third Section), 11 Sept. 2001.
85. Lindsay and Others v. United Kingdom, 3 COMMON MKT. L. REP. 166, 170-71 (1979). See also The Liberal Party et al. v. United Kingdom, 4 EUROP. HUM. RTS. REP. 106 (1982).
86. Lindsay and Others v. United Kingdom, 3 COMMON MKT. L. REP. 166, 170-71 (1979). See also The Liberal Party et al. v. United Kingdom, 4 EUROP. HUM. RTS. REP. 106 (1982).
87. Murdock, supra note 28.
88. General Comment No. 23(50), adopted 6 Apr. 1994, U.N., Hum. Rts. Comm. 50th Sess., 1314th mtg., addendum 1994, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (1994). Some States parties who claim that they do not discriminate on grounds of ethnicity, language or religion wrongly contend, on that basis alone, that they have no minorities. . . . The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria. Arts. 4 & 5(2) (emphasis added).
89. See Stankov & United Macedonian Organisation ILINDEN v. Bulgaria, 29221 & 29225/ 95, Eur. Comm'n Hum. Rts., 29 June 1998; Eur. Ct. Hum. Rts. (First Section), 2 Oct. 2001.
90. Agabaloglu v. Turkey, 31134/96, Eur. Ct. Hum. Rts. (First Section), 8 June 1999.
91. Cf. Advisory Opinion of 6 April 1935 on Minority Schools in Albania, PERM. CT. INT'L JUSTICE SER. A/B, No. 64.
92. AI-Nashif et al. v. Bulgaria, 50963/99, Eur. Ct. Hum. Rts. (Fourth Section), 16 Dec. 1999 & 25 Jan. 2001.
93. Id. at The Facts, § A.
94. Raif Oglu v. Greece, 33738/96, Eur. Ct. Hum. Rts. (Third Section), 16 Mar. 1999. Cf. For the subsequent decision in 2000, see Raif Oglu, supra note 13. See also Ahmet Sadik v. Greece 18877/91, Eur. Ct. Hum. Rts. (46/1995/552/638), 15 Oct. 1996.
95. See Raif Oglu, supra note 13.
96. 44158/98, Eur. Ct. Hum. Rts. (Fourth Section), 17 May 2001 (admissibility); 20 Dec. 2001 (Merits), supra note 9, ¶ 62.
97. See id. ¶ 59. In that connection the Court cannot but note that the applicants could easily have dispelled the doubts voiced by the authorities, in particular by slightly changing the name of their association. . . . Those alterations would not, in the Court's view, have had harmful consequences for the Union's existence as an association and would not have prevented its members from achieving the objectives they set for themselves. The Court would also point out that pluralism and democracy are, by the nature of things based on a compromise that requires various concessions by individuals and groups of individuals. The latter must sometimes be prepared to limit some of their freedoms so as to ensure the greater stability of the country as a whole. This is particularly true as regards the electoral system, which is of paramount importance for any democratic State. The Court accordingly considers that, in the particular circumstances of the present case, it was reasonable on the part of the authorities to act as they did in order to protect the electoral system of the State, a system which is an indispensable element of the proper functioning of a "democratic society" within the meaning of Article 11. Id. ¶¶ 65-66.
98. Metro. Church, supra note 16, ¶ 101.
99. Id. ¶ 125. This quotation is an unofficial translation of the the following text: A l'audience du 2 octobre 2001, le Gouvernement a soutenu que son refus d'accéder à la demande de reconnaissance déposée par les requérants tendait à la protection de l'ordre et de la sécurité publique. L'Etat moldave dont le territoire a oscillé au cours de l'historie entre la Roumanie et la Russie, a une population variée du point de vue ethnique et linguistique. Dans ces circonstances, la jeune République de Moldova, indépendante depuis 1991, dispose de pue d'éléments de nature à assurer sa pérennité. Or, l'un de ces éléments est la religion. En effet, la majorité de la population est de religion chrétienne orthodoxe. Par conséquent, la reconnaissance de l'Eglise orthodoxe de Moldova, subordonnée au patriarcat de Moscou, a permis à toute cette population de se retrouver au sein de cette Eglise. Il se trouve que, si l'Eglise requérante était reconnue, ce lien risquerait d'être détruit et la population chrétienne orthodoxe dispersée entre plusieurs Eglise et d'autre part, derrière l'Eglise requérante, subordonée au patriarcat de Bucarest, oeuvreraient des forces politiques ayant partie liée avec les intérêts roumains favorables à la réunion de la Bessarabie à la Roumanie. La reconnaissance de l'Englise requérante raviverait donc de vieilles rivalités russo-roumaines au sein la population, mettant ainsi en danger la paix sociale, voire l'intégrité territoriale de la Moldova.
100. Canea Catholic Church v. Greece, 143/1996/762/963, Eur. Ct. Hum. Rts., 16 Dec. 1997.
101. Committee of Ministers, Appendix to Resolution DH (2000) 44, 10 Apr. 2000, Canea Catholic Church v. Greece.
102. Id. at 83.
103. Sidiropoulos v. Greece, 57/1997/841/1047 or 26695/95, Eur. Ct. Hum. Rts., 10 July 1998 ¶¶ 43-47. See also Amnesty Int'l, News Release, Sept. 1998 (Amnesty International INDEX: EUR 25/44/98) which reported that the Greek authorities had charged four members of the Rainbow Party, an ethnic Macedonian party, with "causing and inciting mutual hatred among the citizens" for displaying a sign in Florina in Greek and Macedonian which simply stated "Florina Committee."
104. See Committee of Ministers, Appendix to Resolution DH (2000) 99, 24 July 2000; see also Sidoropoulos, supra note 86.
105. See Arslan v. Turkey, 23462/94; Baskaya & Okçuoglu v. Turkey, 23536 & 24408/94; Ceylan v. Turkey, 23556/94; Erdogdu & Ince v. Turkey, 25067 & 25068/94; Gerger v. Turkey, 24919/94; Karatas v. Turkey, 23168/94; Okçuoglu v. Turkey, 24246/94; Polat v. Turkey, 23500/94; Sürek & Ödemir v. Turkey, 23927 & 24277/94; Sürek v. Turkey (No.1), 26682/95; Sürek v. Turkey (No.2), 24122/94; Sürek v. Turkey (No.3), 24735/94; & Sürek v. Turkey (No.4), 24762/94: (Grand Chamber), Eur. Ct. Hum. Rts., all 8 July 1999. See also Marsali v. Turkey, 40077/98, Eur. Ct. Hum. Rts., (Second Section), 19 Oct. 2000 (admissibility); Zana v. Turkey, 26982/95, Eur Ct. Hum. Rts. (First Section), 15 Feb. 2000 (admissibility); Sener v. Turkey, 26680/95, Eur. Ct. Hum. Rts. (Third Section), 18 July 2000; Özler v. Turky, 25753/94, Eur. Ct. Hum. Rts. (Third Section), 30 Jan. 2001 (admissibility); Kalin, supra note 39.
106. Arslan, supra note 88, ¶ 44.
107. Id. ¶ 46.
108. See Sürek (No.1) & Sürek (No.3), supra note 88. NB. A violation of Article 6(1) was found in both cases. See also, Hogefeld v. Germany, 35402/97, Eur. Ct. Hum. Rts. (Fourth Section), 20 Jan. 2000, discussed below.
109. Id. ¶ 38 & 40. Cf. The dissenters, on the other hand, found a greater latitude in freedom of expression: My answer to this question is to focus less on the vehemence and outrageous tone of the words employed and more on the different elements of the contextual setting in which the speech was uttered. Was the language intended to inflame or incite to violence? Was there a real and genuine risk that it might actually do so? The answer to these questions in turn requires a measured assessment of the many different layers that compose the general context in the circumstances of each case. Judge Palm, Sürek (No.1), supra note 88 (partly dissenting), ¶ 3. See also the more rigorous partly dissenting judgment of judges Tulkens, Casadevall, and Greve: "We consider that freedom of expression as protected by the Convention may be curtailed only when there is direct provocation to commit serious criminal offences (crimes)." Id. ¶ 1 (Tulkens, Casadevall, and Greve, dissenting).
110. Özgür Gündem v. Turkey, 23144/93, Eur. Ct. Hum. Rts. (Fourth Section), 16 Mar. 2000. The application to The Court was originally made by the editor-in-chief (now deceased), the assistant editor-in-chief, and the owners of the now defunct Özgür Gündem.
111. A similar violation was found in Özgür Gündem with respect to a police raid on the premises which closed the newspaper down for two days, supra note 93, ¶¶ 46-49. The Court went on to find that Turkey had also used legal proceedings before the courts to interfere directly with distribution of the newspaper contrary to Article 10, id. ¶¶ 70 & 71. In one case the newspaper had been closed for a month. "The Court concludes that the respondent State has . . . imposed measures on the newspaper . . . through numerous prosecutions and convictions in respect of issues of the newspaper, which were disproportionate and unjustified in the pursuit of any legitimate aim." Id. ¶ 71.
112. Özgür Gündem, supra note 93, ¶ 42.
113. Id. ¶ 43.
114. Id. ¶¶ 44-46.
115. Marsali v. Turkey, 40077/98, Eur. Ct. Hum. Rts. (Second Section), 19 Oct. 2000.
116. Cf. Özler, supra note 88, where the Third Section held that making a political speech at a rally did not engage Article 9, only Articles 10 and 14.
117. Cyprus, supra note 45, ¶ 457.
118. Id. ¶¶ 253-54 & 362-63.
119. Ekin, supra note 20.
120. This qoute is an unofficial translation of the following text: "l'article 14 de la loi de 1881 crée discrimination en matière de liberté d'expression fondée juridiquement sur la langue ou l'origine nationale." Id. at En Droit, § 1.
121. Id. ¶¶ 60-65.
122. See Sürek (No.1) & Sürek (No.3), supra note 88. NB. A violation of Article 6(1) was found in both cases. See also Hogefeld, supra note 91.
123. Hogefeld, supra note 91, at The Facts § A, Particular Circumstances of the Case.
124. Id., at The Facts, § A.
125. Id.
126. See Turkish Freedom of Expression cases, supra note 88.
127. Sener, supra note 88, ¶ 39. See also Sürek & Özdemir, supra note 88, where it was held that it had been wrong to have prosecuted the owners of a weekly magazine in which there had been an interview with the second in command ot the PKK.
128. See Sürek (No.1) & Sürek (No.3), supra note 88.
129. NB. Hogefeld was decided on 20 January 2000 and does not seem to have heralded any generally restrictive attitude in any subsequent case.
130. Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, supra note 11.
131. Skender v. Former Yugoslav Republic of Macedonia 62059/00, Eur. Ct. Hum. Rts. (First Section), 22 Nov. 2001, rejecting the admissibility of the applicant's third complaint.
132. Cyprus (Grand Chamber), supra note 45, ¶¶ 474-79.
133. UN Doc. S/11789, Vienna, 31 July-2 Aug. 1975.
134. Cyprus (Commission), supra note 45, ¶ 478.
135. Id. ¶¶ 278, 292.
136. Id. ¶ 459 - upheld by the Court at ¶¶ 252 & 254.
137. The freedom of religion of individual members of religious minorities is not dealt with here although the Court will protect those rights under Article 9 in the same way that anyone's freedom of religious belief would be upheld: see IS v. Bulgaria, 32438/96, Eur. Ct. Hum. Rts. (Fourth Section), 6 Apr. 2000; Thlimmenos, supra note 25; the Turkish "Islamic Scarf" cases, Çelikates et al. v. Turkey, 45824/99, Soysever v. Turkey, 39826/ 98 Yügürük v. Turkey, 47500/99, Kayseri v. Turkey, 46643/99, Pektas v. Turkey, 39682/98, all Eur. Ct. Hum. Rts. (First Section), 7 Nov. 2000; Pitkevich v. Russia, 47936/ 99, Eur. Ct. Hum. Rts. (Second Section), 8 Feb. 2001 (inadmissible).
138. Cyprus (Commission), supra note 45, ¶¶ 449-54; (Court), supra note 45, ¶¶ 243-46.
139. Al-Nashif et al., supra note 63, at Complaint 5. See also, Kosteski v. FYROM, 55170/00, Eur. Ct. Hum. Rts. (Second Section), 3 May 2001, where the applicant had been dismissed for non-attendance at work which he asserted was due to his observance of Muslim religious holidays, as guaranteed by the Macedonian Constitution. The Court adjourned the case to let the Government respond to complaints under Article 9 alone and with Article 14. The Article 14 complaint is based on the fact that the Macedonian authorities required him to prove he was Muslim, unlike other Muslims in Macedonia, given that his parents were Christian and, up until the events that led to his dismissal, he had always celebrated the Christian holidays. This case may require the Court to examine how one proves one belongs to a particular minority group.
140. Serif v. Greece, 38178/97, Eur. Ct. Hum. Rts. (Second Section), 14 Dec. 1999; see also Agga v. Greece, 50776/99 and 52912/99, Eur. Ct. Hum. Rts. (Second Section), 20 Sept. 2001.
141. United Christian Broad. Ltd., supra note 31.
142. Metro. Church, supra note 16.
143. Case Relating to Certain Aspects of the Laws on the Use of Languages in Belgium, supra note 11 (see text in note 27).
144. Hasan and Chaush v. Bulgaria, 30985/96, Eur. Ct. Hum. Rts. (Grand Chamber), 26 Oct. 2000.
145. See Cyprus, supra note 45.
146. Cf. Tsarknias, supra note 22, where it was held the application was inadmissible given the applicant had tried to disrupt church services.
147. Serif, supra note 123, ¶¶ 49-53.
148. Hasan, supra note 127.
149. See id. ¶¶ 78 & 81.
150. Id. ¶ 62.
151. United Christian Broad. Ltd., supra note 31.
152. Metro. Church, supra note 16.
153. Id. ¶ 123. This quotation is an unofficial translation of the following text: La Cour note tout d'abord que l'Eglise requérante a déposé une première demande de reconnaissance le 8 octobre 1992, restée sans réponse, et que ce n'est qu'à une date ultérieure, le 7 février 1993, que l'Etat a reconnu l'Eglise métropolitaine de Moldova. Dans ces conditions, la Cour comprend mal, du moins pour ce qui est de la période précédant la reconnaissance de l'Eglise métropolitaine de Moldova, l'argument du Gouvernement selon lequel l'Eglise requérante ne serait qu'un groupe schismatique par rapport à l'Eglise métropolitaine de Moldova, reconnue. En tout état de cause, la Cour rappelle que le devoir de neutralité et d'impartialité de l'Etat, tel que défini dans sa jurisprudence, est incompatible avec un quelconque pouvoir d'appréciation de la part de l'Etat quant à la légitimité des croyances religieuses, et que ce devoir impose à celui-ci de s'assurer que des groupes opposés l'un à l'autre, fussent-ils issus d'un même groupe, se tolèrent. En l'espèce, la Cour estime qu'en considérant que l'Eglise requérante ne représentait pas un ouveau culte et en faisant dépendre sa reconnaissance de la volonté d'une autorité ecclésiastique reconnue, l'Eglise métropolitaine de Moldova, le Gouvernement a manqué à son devoir de neutralité et d'impartialité. Dès lors, il y a lieu de rejeter l'argument de celui-ci selon lequel le refus de reconnaissance était nécessaire à la défense de la légalité et de la Constitution moldave.
154. Id. ¶ 129.
155. Jewish Liturgical Ass'n, supra note 26.
156. Id. ¶¶ 22 & 25. For a full background to Jewish ritual slaughter, see ¶¶ 13-26.
157. The applicant association could have sought authorization from the Jewish Consistorial Association of Paris.
158. Jewish Liturgical Ass'n, supra note 26, ¶ 58.
159. Id. ¶ 74. The French government had also argued that the applicant association was only interested in commercial matters, the slaughter and sale of kashrut meat.
160. Id. ¶¶ 80-83.
161. Viz. Serif, supra note 123, ¶¶ 49-53.
162. Jewish Liturgical Ass'n, supra note 26, dissent, § 2, ¶ 2 (dissent by Bratza, Fischbach, Thomassen, Tsatsa-Nikolovsak, Pantion, Leints and Traja).
163. Id. at dissent, § 2, ¶¶ 14, 16.
164. Hasan, supra note 127.
165. See Committee of Ministers, Appendix to Resolution DH (2000) 44, 10 April 2000, Canea Catholic Church v. Greece; Committee of Ministers, Appendix to Resolution DH (2000) 99, 24 July 2000, Sidoropoulos, supra note 85.
166. Lagerblom v. Sweden, 26891/95, Eur. Ct. Hum. Rts. (First Section), 15 Feb. 2000.
167. Ignatane v. Latvia, Communication No. 884/1999, Human Rights Committee, 25 July 2001, held that barring a member of the Russian minority from standing in local elections on the ground that her proficiency in Latvian was not adequate, despite the fact that a state approved test three years earlier had given her the highest grade, violated Articles 25 and 2 of the ICCPR: she had been "prevented from exercising her right to participate in public life." Id. ¶ 7(4).
168. The Secretary General of the Council of Europe Walter Schwimmer, Press Release, 26 Nov. 2001.
169. See KPD v. FRG, 250/57, the German Communist Party case, 1 Y.B. EUR. CONV. ON H.R. 222 (1957), which, by analogy, must imply the right to political participation in normal circumstances. See also United Communist Party of Turkey (TBKP) v. Turkey, 26 EUR. HUM. RTS. REP. 121 (1998), where the Court held, ¶ 45, that democracy was the only form of governance contemplated in the European Convention. In a similar vein, see Socialist Party v. Turkey, 27 EUR. HUM. RTS. REP. 51, ¶ 47 (1999).
170. See KPD v. FRG, 250/57, the German Communist Party case, 1 Y.B. EUR. CONV. ON H.R. 222 (1957), which, by analogy, must imply the right to political participation in normal circumstances. See also United Communist Party of Turkey (TBKP) v. Turkey, 26 EUR. HUM. RTS. REP. 121 (1998), where the Court held, ¶ 45, that democracy was the only form of governance contemplated in the European Convention. In a similar vein, see Socialist Party v. Turkey, 27 EUR. HUM. RTS. REP. 51, ¶ 47 (1999).
171. See KPD v. FRG, 250/57, the German Communist Party case, 1 Y.B. EUR. CONV. ON H.R. 222 (1957), which, by analogy, must imply the right to political participation in normal circumstances. See also United Communist Party of Turkey (TBKP) v. Turkey, 26 EUR. HUM. RTS. REP. 121 (1998), where the Court held, ¶ 45, that democracy was the only form of governance contemplated in the European Convention. In a similar vein, see Socialist Party v. Turkey, 27 EUR. HUM. RTS. REP. 51, ¶ 47 (1999).
172. Stankov, supra note 71, ¶ 89.
173. Grande Oriente D'Italia di Palazzo Giustiniani, supra note 20.
174. The Section went on to hold on the merits (2 Aug. 2001) that there had been a violation of Article 11 and that there was no need to consider the complaints under Article 14.
175. Buscarini v. San Marino, 24645/94, Eur. Ct. Hum. Rts. (Grand Chamber), 18 Feb. 1999.
176. 39511/98, Eur. Ct. Hum. Rts. (Third Section), 8 June 1999. See also Affaire Refah Partisi (Parti de la Prospérité) et autres c. Turquie, 41340/98, 41342/98, 41343/98, 41344/98, Eur. Ct. Hum. Rts. (Third Section), 31 July 2001.
177. Buscarini, supra note 156, art. 9, ¶ 39.
178. See Ahmed v. United Kingdom, 29 EUR. HUM. RTS. REP. 1, ¶ 52. (2000).
179. Affaire Refah Partisi (Parti de la Prospérité) et autres, supra note 157, ¶¶ 1 & 4.
180. To that extent it seems the Court accepted that one can waive some rights to some extent. However, while Sinn Féin supporters can be assumed to have acquiesced in their loss of representation, a Member of Parliament represents all her/his constituents and those voting for other parties definitely did not agree that they should have no MP if their candidate lost.
181. See Zana, supra note 88.
182. 28516/95, Eur. Ct. Hum. Rts. (First Section), 28 Mar. 2000.
183. Id. at Complaints.
184. Osmani v. FYROM, 50841/99, Eur. Ct. Hum. Rts. (Second Section), 11 Oct. 2001.
185. Id. at The Facts, § A.
186. See Communication No.167/1984, Bernard Ominayak, Chief of the Lake Lubicon Band v. Canada, Views adopted 26 Mar. 1990, UNGAOR, 45th Sess., Supp. No.40, A/45/40, 11 HUM RTS. L. J. 305, (1990); Communication No. 413/1990, A.B. v. Italy, South Tirol Case Decision on Admissibility 2 Nov. 1990, 12 HUM. RTS. L. J. 25, ¶ 3.2 (1991). See also Communication No. 547/1993, Apirana Mahuika v. New Zealand, Views adopted 15 Nov. 2000, where the Human Rights Committee held that "the provisions of Article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular Article 27." Id. ¶ 9(2).
187. See Communication No.167/1984, Bernard Ominayak, Chief of the Lake Lubicon Band v. Canada, Views adopted 26 Mar. 1990, UNGAOR, 45th Sess., Supp. No.40, A/45/40, 11 HUM RTS. L. J. 305, (1990); Communication No. 413/1990, A.B. v. Italy, South Tirol Case Decision on Admissibility 2 Nov. 1990, 12 HUM. RTS. L. J. 25, ¶ 3.2 (1991). See also Communication No. 547/1993, Apirana Mahuika v. New Zealand, Views adopted 15 Nov. 2000, where the Human Rights Committee held that "the provisions of Article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular Article 27." Id. ¶ 9(2).
188. European Convention, supra note 2, at art. 34.
189. Id. at art. 53. Sidiropoulos, supra note 85, ¶ 44, made reference to the obligations of Greece towards minorities under OSCE instruments. See also Geoff Gilbert, Minority Rights under the Council of Europe, in MINORITY RIGHTS IN THE "NEW" EUROPE (Stephen Wheatley & Peter Cumper eds., 1999).
190. See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 100 (1993): The correlation of rights with justiciability is an understandable attitude from the domestic-law point of view. But, of course, international lawyers are very familiar with the phenomenon that . . . , it is not possible to bring claims in vindication of rights held in international law. The absence of the possibility of recourse to third-party judicial procedures is certainly not the test of whether the right exists or not. To the international lawyer, the existence of the right is tested by reference to the sources of international law. Id.
191. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.HRI\GEN\1\Rev.1 at 12 (1994), ¶ 6. See also the more traditional analysis of the Committee on the Elimination of Racial Discrimination, General Recommendation XXI on self-determination, U.N. Doc. CERD/48/Misc.7/Rev.3 (1996).
192. Id. ¶ 6 (dealing with the obligations on the state with respect to Article 1(3), but this description of self-determination is applicable to all instances in Article 1. "With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right." Id. ¶ 4.
193. See KPD, the German Communist Party case, supra note 152. See also Jan de Meyer, Electoral Rights, in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 556 (Ronald St. James Macdonald, Franz Matscher, Herbert Petzold eds., 1993) (questioning the views of the Commission in X v. FRG, 3 DR 98 at 100 (1975)). See also Apirana Mahuika, supra note 167.
194. The opportunity may arise in Sadak et al. v. Turkey, 25144/94, 26149-54/95, 27100-01/ 95, Eur. Ct. Hum. Rts. (Third Section), 30 May 2000.
195. European Convention, supra note 2, at art. 1.
196. See Frederick Kirgis, The Degrees of Self-Determination in the United Nations Era, 88 AM. J. INT'L L. 304 (1994); see also Gilbert, Autonomy and Minority Groups - A Right in International Law?, 35 CORNELL INT'L L.J. (forthcoming 2002). It should be remembered that in the European context, while it would be the Court that would pronounce whether there has been a violation of the rights in the European Convention read in conformity with Article 1 ICCPR, the execution of the judgment is supervised by the Committee of Ministers. See European Convention, supra note 2, at art. 46(2).
197. See Frederick Kirgis, The Degrees of Self-Determination in the United Nations Era, 88 AM. J. INT'L L. 304 (1994); see also Gilbert, Autonomy and Minority Groups - A Right in International Law?, 35 CORNELL INT'L L.J. (forthcoming 2002). It should be remembered that in the European context, while it would be the Court that would pronounce whether there has been a violation of the rights in the European Convention read in conformity with Article 1 ICCPR,
198. See TBKP, supra note 152.
199. Id. ¶ 45.
200. Id. ¶ 61.
201. Id. ¶ 9.
202. Id. ¶ 56.
203. See also, Sidiropoulos, supra note 85, ¶¶ 43 & 46; Ahmet Sadik, supra note 76; Gorzelik, supra note 8; and, the Rainbow Party case, Amnesty Int'l, News Release, supra note 85. Cf. In Stankov, the Eur. Ct. Hum. Rts. held that there could even be calls for secession without there automatically being a threat to a country's territorial integrity and national security - discussed below. See supra note 70, ¶ 97.
204. Socialist Party, supra note 152. See TBKP, supra note 152, ¶ 47; see also ÖZDEP v. Turkey, 31 EUR. HUM. RTS. REP. 27, ¶ 41 (2001); Zana, supra note 88. Cf. Parti de la Prospérité, supra note 157, where the Eur. Ct. Hum. Rts. by a majority of 4-3 held that the Turkish government had been justified in dissolving the Refah Partisi (Prosperity Party) because it had objectives that threatened democracy. Consequently , the Court considers that the penalty imposed on the applicants may reasonably be considered to have met a "pressing social need," in so far as Refah's leaders, under the pretext that they were redefining the principle of secularism, had declared their intention of setting up a plurality of legal systems and introducing Islamic law (sharia), and had adopted an ambiguous stance with regard to the use of force to gain power and retain it. It takes the view that, even though the margin of appreciation left to States must be a narrow one where the dissolution of political parties is concerned, since the pluralism of ideas and parties is itself an inherent part of democracy, a State may reasonably forestall the execution of such a policy, which is incompatible with the Convention. Affaire Refah Partisi (Parti de la Prospérité) et autres, supra note 157, ¶ 81.
205. Socialist Party, supra note 152 ¶ 47.
206. ÖZDEP, supra note 183, ¶ 44; Stankov, supra note 71, ¶ 84.
207. Alabay and Güzel v. Turkey 41334/98, Eur. Ct. Hum. Rts. (First Section), 26 Sept. 2000.
208. Gorzelik and Others, supra note 9.
209. Alabay and Güzel v. Turkey, supra note 186, ¶ 56.
210. Id. ¶¶ 65-66.
211. Id. ¶ 59. The balancing of conflicting individual interests and rights is a difficult exercise. It may involve consideration of political and social issues on which opinions within a democratic society differ significantly. In that sphere the Contracting States must have a broad margin of appreciation because, given their knowledge of the country, their authorities are in principle better placed than the European Court to assess whether or not there is a "pressing social need" capable of justifying interference with one of the rights guaranteed by the Convention.
212. See Ahmet Sadik, supra note 77.
213. See Sadak et al. v. Turkey, supra note 174.
214. See TBKP, supra note 152, ¶ 56.
215. Stankov, supra note 71, ¶ 89; see also ÖZDEP, supra note 183, ¶ 44, where the Court held "there can be no justification for hindering a political group."
216. Stankov, supra note 71, ¶ 86. The Court indicates the government had overreacted in banning the organization's meetings simply because there might be minor threats to public order which could be dealt with easily and where prosecution of individual offenders was a more appropriate response.
217. Id. ¶ 97. Incitement to violence, rejection of democratic principles, and seeking the expulsion of others from the territory would all allow for restrictions on the Article 11 right. See also ¶¶ 97 & 100.
218. G and E v. Norway, DR 9278 & 9415/81, 35 DR 30 at 35-36 (1983).
219. Buckley v. United Kingdom, Comm'n, 20348/92, 19 EUR. HUM. RTS. REP. CD 20 (1995); Buckley v. United Kingdom, Court, 23 EUR. HUM. RTS. REP. 101 (1997) (rejecting Buckley's complaints).
220. Buckley v. United Kingdom, Comm'n, 20348/92, 19 EUR. HUM. RTS. REP. CD 20 (1995); Buckley v. United Kingdom, Court, 23 EUR. HUM. RTS. REP. 101 (1997) (rejecting Buckley's complaints).
221. Buckley, Comm'n, supra note 198, ¶¶ 64 & 65.
222. In G & E v. Norway, supra note 197, the Commission found no violation of Article 8 because it was proper to take account of the economic well-being of the state. Similarly, the Court in Buckley, supra note 198, reversed the opinion of the Commission, saying the local authority was justified in taking the interests of the other residents of the village into consideration under Article 8(2). See also Francis Gibb & Ian Murray, Gypsy Must Stop Living in Caravan on Her Own Land, THE TIMES (LONDON), 26 Sept. 1996, at 2. In G & E v. Norway, the Commission also observed that there was no express guarantee of minority rights in the Convention, only a prohibition against discrimination - moreover, as Norwegian citizens, the Lapp applicants had all the same rights as other citizens, including the right to vote. Despite there being no Lapp representation in the Norwegian Parliament, the mere fact Lapps could vote and stand for election denied their having suffered discrimination. The application was declared inadmissible. Id. at 35.
223. Chapman, Smith, Lee & Coster cases, supra note 57.
224. Chapman, supra note 57, ¶ 96. See mutatis mutandis, Marckx v. Belgium, Ser. A vol.31, 13 June 1979, ¶ 31; Keegan v. Ireland, Series A vol. 290, 26 May 1994, ¶ 49, Kroon and Others v. The Netherlands, Ser. A vol.297-C, 27 Oct. 1994, ¶¶ 31.
225. Cyprus, supra note 45, ¶¶ 575-77. Not considered by the Court.
226. Joined by Trechsel, Thune, Rozakis, Sváby, Ress, and Perenic.
227. Buckley, supra note 198.
228. Noack, supra note 17.
229. Id. at En Droit § 1. This quotation is an unofficial translation of the following text: Un élément déterminant pour la Cour réside également dans le fait que les habitants de Horno seront transférés en bloc vers une ville située à une vingtaine de kilomètres de leur village d'origine, dans la zone d'implantation originelle des Sorabes, pour laquelle ils ont opté majoritairement après avoir été consultés quant au choix de leur lieu de destination. Même si ce transfert implique un déménagement et la réorganisation de la vie dans la zone de réinstallation, les habitants résideront dans la même région et dans le même environnement culturel, où la protection des droits des Sorabes est assurée conformément à l'article 25 de la Constitution du Land de Brandebourg (voir Droit interne pertinent ci-dessus), où leur langue est enseignée dans les écoles et utilisée par les autorités administratives, et où ils pourront continuer à pratiquer leur coutumes et notamment suivre l'office religieux en langue sorabe.
230. See the parallel political mechanisms of the Organization for Security and Co-operation in Europe, in particular, even though indirect, the office of the High Commissioner on National Minorities. See Jane Wright, The OSCE and the Protection of Minority Rights, 18 HUM. RTS. Q. 190 (1996).