However, this freedom is strongly connected to the freedoms in Articles 9 (thought, conscience and religion) and 10 ECHR (expression, including artistic expression as per the case law). It is therefore an important freedom for arts and culture, and should be facilitated in a cultural context wherever possible. In its case law, the ECtHR has stated that the freedom extends to associations for protecting the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts.

Despite the lack of case law for creative culture, it is nonetheless hard to imagine that the right would not apply to an association formed to promote creativity if ever a public authority refused to register, or decided to dissolve, an association of this type.

More case law in the arts field may be forthcoming with the recent recognition by the HRC of the important role of new information technologies for freedom of association, in connection with the freedoms of expression, thought, conscience and religion, as well as the rise of hate speech groups on the internet. Policy should look at augmenting digital access and fostering responsible Internet practice.

REFERENCES:

Boyle, Kevin: “Human Rights, Religion and Democracy: the Refah Party Case”, Essex Human Rights Review (2004).

Council of Europe, Committee of experts on crossborder flow of Internet traffic and Internet freedom (MSI-INT): Draft report on freedom of assembly and association on the Internet, MSI-INT (2014)08 rev 2, 11 May 2015.

Council of Europe, Research Division: Cultural rights in the case-law of the European Court of Human Rights, Strasbourg (2011).

Equality and Human Rights Commission: “Article 11: Freedom of assembly and association”, in Human Rights Review 2012, London (2012).

GORZELIK AND OTHERS v. POLAND (ECtHR 17/02/2004, 44158/98).

REFAHPARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY (ECtHR 31/07/2001, 41340/98, 41342/98, 41343/98 and 41344/98.

SIDIROPOULOS AND OTHERS v. GREECE, (ECtHR 10/07/1998, 57/1997/841/1047).

www.article19.org (accessed 01/2016).

Siobhan Montgomery

Authors’ Rights / Copyright

(in a Human Rights Context)

DEF/INSTR: Internationally, the material and moral interests of authors regarding the protection of their scientific, literary or artistic works have been defined as particular Human Rights (UDHR, Article 27(2); ICESCR, Article 15(1)(c)) and, especially in Europe, as intellectual property (UDHR, Article 17; Protocol no. 1, ECHR, Article 1; ECtHR [ASHBY, 2013]; CFR Article 17(2)). These rights, however, are part of a set of other rights and freedoms, such as freedom of expression (UDHR, Article 19; ECHR, Article 10); the right to education, to culture, to the benefit of scientific progress (UDHR, Articles 26 and 27; ICESCR, Articles 13 and 15; CFR, Articles 13 and 14); the right to privacy and to the protection of personal data (ECHR, Article 8; CFR, Articles 7 and 8); or the freedom to conduct a business (CFR, Article 16).

In the twentieth century, the international and European (TRIPS; WIPO treaties; EU directives) as well as some of the national legal frameworks with regard to literary and artistic property became excessive:

However, the proliferation of exclusive rights and rights to remuneration only marginally assists authors and artists (‘Authors’ rights help only a tiny minority of artists to survive’, Pierre Langlais 2015) and, instead, mainly benefits the holders of exploitation rights to creative works and →intangible cultural heritage (editors, music industry, collective management companies, Internet and broadcast platforms, etc.).

CASES: When several fundamental rights are in conflict, the high courts of justice tend towards ensuring a fair balance between them. For example:

a) In support of copyright:

b) In support of the freedom of expression and information, the right to →privacy and the freedom of enterprise:

VIEWS: In the last decades, the ownership of intangible assets based on the assumption that →intellectual property is per se useful to the common good (Convention establishing the WIPO, Article 3) since it protects against competition and stimulates innovation and creativity in a postindustrial, high added value market, has increasingly been met with criticism. In order to justify this assumption, individual creativity is substituted by economic investment: rewarding the latter forms the basis for the European Commission’s recent development policy for the digital single market.

Some question this utilitarian justification of what is considered to be an excessive and useless appropriation: no serious study appears to demonstrate that intellectual property protection would be more effective than the free market and common law in stimulating creativity and its dissemination. Consequently, a now frequent view is that the public domain should be expanded by reducing the terms of protection and avoiding technological or contractual locking.

Others consider that the system of intellectual and artistic property has developed to the detriment of other fundamental rights such as the right to personal and social development based on the freedom of human creativity, expression and information as well as to the right to participate in cultural life and science. In this view, a new balance must not only allow access to works and scientific knowledge but should indeed facilitate informal training and research, the aggregation of digital modules, data mining, etc. as well as the creative, derived, interpretation of works, contrary to some court rulings on ‘moral rights’ [e.g. Paris Court of Appeal, BERNANOS v. TCHERNIAKOV, 2015]. Similar concerns regarding freedom of artistic expression vs. copyright have already been positively taken up in a recent case on music sampling [German Federal Const. Court, 1 BvR 1585/13, 2016].

CONCL: The global, digital civilisation of the twenty first century puts the right to literary and artistic property into a new societal perspective. Basing the latter on fundamental rights (spelled out in the UDHR) and the general interest should result in an improved balance between the right to ownership, authors’ moral and material interests, and the right to participate in cultural life and scientific knowledge. In the words of Farida Shaheed, Special Rapporteur in the field of cultural rights of the UN HRC, 2014: ‘Both cultural participation and protection of authorship are human rights principles designed to work in tandem.’ This ‘pressing social need’ has already spontaneously materialised through the voluntary establishment of non-appropriable public domain tools using existing law (General Public Licence, Creative Commons Licences; Open Access; Wikipedia; etc.). However, more structural reforms are required (e.g. the Adelphi Charter 2005, Royal Society for the Encouragement of Arts, Manufactures and Commerce, UK; Copyright for Creativity – A Declaration for Europe, 2010). They relate to the nature of intellectual property rights (temporary privilege granted by the state to benefit the general interest); improved criteria for access to protection; transparency to identify the protected objects; a reduced term of protection; an obligation to enable normal exploitation under penalty of loss of rights; legal licences rather than exclusive rights; the simplification of legislation and the protection of the public domain. In addition, the exercise of an artistic activity should be facilitated by guaranteeing authors and artists the freedom of creation and recreation, an appropriate income, especially by means of a more effective regulation of their contracts, a clear and better →status of artists in terms of social, fiscal and other rights, as well as through appropriate information.

REFERENCES:

Buydens, Mireille: La Propriété intellectuelle – Evolution historique et philosophique, Bruxelles: Bruylant (2012).

Commission européenne: Vers des règles européennes du droit d’auteur adaptée à l’ère numérique, Communiqué de presse, Bruxelles, 9 décembre 2015.

Council of Europe: Copyright and Human Rights, Report prepared by the Group of Specialists on Human Rights in the Information Society (MS-S_IS), Directorate General of Human Rights and Legal Affairs, Strasbourg, June 2009, H/inf (2009).

Hugenholtz, P. Bernt: “Copyright and Freedom of Expression in Europe”, in Cooper Dreyfuss, R., Leenheer Zimmerman, D., First, H. (eds.): Expanding the Boundaries of Intellectual Property, Innovation Policy for the Knowledge Society, Oxford: Oxford University Press (2001).

Jones, Susan: “Artists low income and status are international issues”, The Guardian, 01/12/2015.

Langlais, Pierre-Carl: “Le droit d’auteur ne fait vivre qu’une infime minorité d’artistes”, 08/04/2015 rue89.nouvelobs.com (accessed 06/16).

Reda, Julia: Rapport sur la mise en oeuvre de la directive 2001/29/CE “Droit d’auteur et Société de l’information", Parl. Eur. 2014–2019, 15. 1. 2015, P.E.546.580v02-00.

Shaheed, Farida: Copyright policy and the right to science and culture, Report of the special Rapporteur in the field of cultural rights, U.N., Human rights Council, A/HRC/28/57, 2014.12.24.

Volat, Gwendoline: “Auteurs du livre affiliés à l’Agessa: dégradation des perspectives de revenus au fil des générations”, Culture chiffres 2/2016 (n∘ 2).

ASHBY DONALD AND OTHERS v. FRANCE (ECtHR, 10/01/2013, 36769/08).

SCARLET v. SABAM (CJEU 14/11/2011, C-70/10).

SVENSSON AND OTHERS v. RETRIEVER SVERIGE AB (CJEU 13/02/2014, C-466/12).

UPC TELEKABEL WIEN v. CONSTANTIN FILM VERLEIH / WEGA FILMPRODUKTION (CJEU 24/03/2014, C314/12).

Suzanne Capiau

Belief

(Freedom of Conscience and Religious B.)

DEF: A belief is a form of conviction or a set of values concerning reality or the spiritual or philosophical premises informing human conduct. They can include deistic, atheistic or nontheistic convictions and worldviews. Belief is protected in international law of human rights similarly to religion and the difference between the two is often fluid and uncertain. The threshold of what views constitute a protected form of belief remains frequently disputed and is subject to case by case determination. The important characteristics of seriousness, importance and cohesion have been, however, established as the minimum threshold for recognition of a protected ‘belief’.

INSTR: Freedom of belief is protected together with freedom of religion in numerous international legal documents, such as Article 18 of the UDHR, Article 18 of ICCPR, Article 9 of the ECHR and Article 10 of the Charter of Fundamental Rights of the EU. Other regional conventions such as the American Convention on Human Rights and African Charter on Human and People’s Rights also include provisions on freedom of conscience. Provisions securing freedom of conscience (including religion and belief) typically secure freedom to manifest one’s belief in worship, teaching and observance and change one’s belief.

Freedom of conscience is not an absolute right and can be limited by law. Article 9(2) of the ECHR allows for limitations that ‘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’. Additionally, Article 2 of Protocol 1 to the ECHR guarantees parents the right to education of their children in conformity with their religious and philosophical convictions. The jurisprudence of the court has dealt with the relationship between beliefs and ‘philosophical convictions’.

CASES: The key problems in the case law on freedom of belief are the threshold of protected belief, the question whether any belief is protected by the ECHR and the relationship between protected beliefs and philosophical convictions. Jurisprudence regarding Article 2 of Protocol 1 has considered these issues in [X,Y AND Z, 1997]where the ECtHR held that the threshold of protection is reserved for beliefs with a certain level of cogency, seriousness, cohesion and importance.

In [CAMPBELL AND COSANS, 1982] the ECtHR added that in ordinary meaning the word ‘convictions’, taken on its own, is not synonymous with the words ‘opinions’ and ‘ideas’, it is more akin to the term ‘beliefs’ and denotes the views that attain a certain level of cogency, seriousness, cohesion and importance. When combined with an adjective ‘philosophical’, the expression ‘philosophical convictions’ denotes beliefs worthy of respect in a ‘democratic society’. The freedom is applicable to both minority and majority beliefs. The ECtHR has argued in [BAYATYAN, 2011] that ‘respect on the part of the State towards the beliefs of a minority religious group (...) by providing them with the opportunity to serve society as dictated by their conscience might (...) ensure cohesive and stable pluralism and promote religious harmony and tolerance in society’. In a case regarding the parental rights of access that had been denied by regional authorities because of a father’s alleged ‘irrational worldview’, the Court considered this to be ‘no reasonable relationship of proportionality’ [VOJNITY, 2013].

VIEWS: The possibility of too low a threshold that would embrace beliefs not meeting the ECtHR’s threshold of seriousness and the possibility of protecting fictional religious movements has attracted diverse responses. Some see the low threshold as advantageous for removing administrative discretion in protecting beliefs (Martinez-Tórron, 2001). In practice, however, some of the newly emerging beliefs – like the ‘Church of the Flying Spaghetti Monster’ that applied in vain for registration in Poland – are often considered as ‘parody religions’ (Laycock, 2013) and therefore refused protection. As well, beliefs that are commonly considered controversial often have difficulties in acquiring legal protection. The ‘Church of Scientology’ and cases concerning its registration before national courts and the ECtHR illustrate the problematic of protecting all beliefs equally [see e.g. CHURCH OF SCIENTOLOGY MO-SCOWAND OTHERS, 2007; CHURCH OF SCIENTOLOGY v. SWEDEN, 1979; SCIENTOLOGY KIRCHE DEUTSCHLAND, 1997]. Some critics insist that concerns about fictional beliefs may result in unjustified classification which reinforces traditional image of a legitimate belief (Taira, 2010, Gozdecka, 2016), thus limiting the effective exercise of religious pluralism that would also include beliefs about religions.

CONCL: Belief and its protection in human rights law is crucial for the existence of a religiously plural society. As underlined by the ECtHR: ‘freedom of thought, conscience and religion 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.’ [KOKKINAKIS, 1993, para. 31]. The problems of threshold between religion and belief and between belief and nonbelief illustrate more general dilemma concerning the essence of the protection of the freedom of thought granted in international law of human rights. The contentious issues concern the scope of protection and the distinction between those elements of freedom enshrined in Article 9 that can and cannot be limited. While similar elements are contested when it comes to the protection of recognised religions, the fluid and more openended nature of belief renders the boundaries of the freedom even harder to determine.

REFERENCES:

Gozdecka, Dorota Anna: Rights, Religious Pluralism and the Recognition of Difference: Off the Scales of Justice, Abingdon: Routledge (2016).

Laycock, Joseph P: “Laughing Matters: ‘Parody Religions’ and the Command to Compare.” 42(3) Bulletin for the Study of Religion (2013).

Martinez-Tórron Javier: “Freedom of religion in the case law of the Spanish Constitutional Court”, Brigham Young University Law Review (2001).

Minister Administracji i Cyfryzacji, Decyzja Odmowna (Refusal), 25 February 2013, available at: www.klps.pl/pliki/decyzja.pdf. (accessed 07/2016).

Taira, Teemu: “Religion as a Discursive Technique: The Politics of Classifying Wicca.” 25(3) Journal of Contemporary Religion (2010).

BAYATYAN v. ARMENIA (ECtHR 07/07/2011, 23459/03).

CAMPBELL AND COSANS v. THE UK (ECtHR 25/03/1982, 7511/76).

CHURCH OF SCIENTOLOGY v. SWEDEN (ECtHR 05/05/1979, 7805/77).

CHURCH OF SCIENTOLOGY MOSCOW AND OTHERS v. RUSSIA (ECtHR 05/04/2007, 18147/02).

KOKKINAKIS v. GREECE (ECtHR 25/05/1993, 14307/88).

SCIENTOLOGY KIRCHE DEUTSCHLAND v. GERMANY (ECtHR 07/04/1997, 34614/96).

VOJNITY v. HUNGARY (ECtHR 12/02/2013, 29617/07).

X, Y AND Z v. THE UK (ECtHR 22/04/1997, 21830/93).

Dorota Gozdecka

Blasphemy

DEF: Blasphemy is an act of showing contempt or disregard for deity or sacred objects, in particular religious symbols. It can be committed in any form which conveys a defamatory message, verbal or non-verbal. There is no single legal definition of blasphemy in Europe. In non-legal contexts, it is commonly interpreted as any attack on religion or religious convictions. However, blasphemy should be distinguished from such legal concepts as religious insults (insult to religious feelings, insult based on belonging to a particular religion), religious discrimination, or incitement to hatred on grounds of religious affiliation or convictions (Report, 2008, 8–10).

INSTR: Insulting or disrespectful behaviour towards holy persons or sacred objects is usually condemned by religious communities whose beliefs are being affected, and for a long time it was also a criminal offence in many parts of the world. Even today some states preserve anti-blasphemy laws, with the intention of protecting believers from facing messages about their religion which they consider shocking or disturbing. However, prosecution of blasphemy, while protecting religious freedom, may at the same time seriously affect the free exercise of freedom of expression.

In Europe, blasphemy is a criminal offence in a minority of the states and it is rarely prosecuted. The severity of punishment varies from one legal system to another, not exceeding six months of imprisonment in most cases (with a notable exception of Greece, incurring a penalty of up to two years for malicious blasphemy).

International conventions on human rights, which mention certain aspects of religious freedom deserving legal protection, do not address explicitly the issue of blasphemous speech. The introduction of blasphemy as a criminal offence into domestic legal systems is not required by the ECHR or by the →Charter of Fundamental Rights of the European Union.

CASES: The issue of blasphemy has been rarely addressed by the ECtHR. It seems that its essential findings in that matter may need to be revised, as the social reality of Europe has changed considerably since those findings were made.

According to the ECtHR, it may be necessary in certain democratic societies to sanction, or even prevent improper attacks on objects of religious veneration, as long as the measures involved are proportionate to the legitimate aim pursued [OTTO-PREMINGER-INSTITUTE, 1994, § 49]. This being so, blasphemy as such is not required to be a criminal offence, since there is a wide range of measures aimed at safeguarding religious freedom against such attacks.

At the same time, the ECtHR has so far not been willing to find anti-blasphemy laws incompatible with the ECHR. The reason for this reluctance is the lack of sufficient common ground in the legal and social orders of the European states to conclude that preserving anti-blasphemy laws is, in itself, unnecessary in a democratic society [WINGROVE, 1996, § 57].

In a more recent recommendation, the Parliamentary Assembly of Council of Europe stated that ‘blasphemy, as an insult to a religion, should not be deemed a criminal offence. A distinction should be made between matters relating to moral conscience and those relating to what is lawful, and between matters which belong to the public domain and those which belong to the private sphere’ (Rec 1805 (2007)). The Venice Commission shared that view (Report, 2008, 63).

VIEWS: The cautiousness of the ECtHR with regard to anti-blasphemy legislation has received some criticism in the legal discourse. The judges who expressed disagreement with the majority opinion in [OTTO-PREMINGER-INSTITUTE, 1994] reiterated that freedom of expression was an essential feature of a democratic society, and that it was applicable not only to ideas that are favourably received by the authorities or the population, but particularly to those that shock, offend or disturb other people. They noted that having accepted the above observation, it would be hardly understandable to guarantee this freedom only as long as it is used in accordance with common religious convictions. The dissenting judges also questioned the majority’s view that the legal protection should depend on whether a particular statement may contribute to any form of public debate. In their opinion, such a decision should not be left to the authorities [OTTO-PREMINGER-INSTITUT, 1994, joint dissenting opinion of judges Palm, Pekkanen, Makarczyk, § 3].

Blasphemy as a legal term may be seen as vague and lacking the precision required by modern criminal law standards. Moreover, it confronts the domestic courts with the necessity of analysing theological issues in order to determine if a challenged statement could be seen as an insult to holy persons. Finally, anti-blasphemy legislation is criticised for its predominantly Christian orientation (Uitz, 2007, 160).

CONCL: Blasphemy tends to cause an outrage to believing people. Statements and images which may be considered gratuitously offensive or defamatory to religion effectively obstruct intercultural communication. As a consequence, they impede mutual understanding and dialogue between people belonging to different religious traditions, while such a dialogue is essential in any pluralistic society.

However, anti-blasphemy legislation should not be seen as an adequate remedy. Instead of striking a fair balance between freedom of expression and freedom of religion, such laws run the risk of suppressing the public debate and imposing disproportionate restriction on free speech, thus proving to be a serious threat to liberal democracy. It appears that free art performance can be particularly affected by such laws.

It should be noted that in several domestic legal systems an overlap between anti-blasphemy laws, religious insult provisions and hate speech provisions was identified. Moreover, specific legislation aimed at combatting blasphemy may have a chilling effect, encouraging self-censorship of →artists and →journalists (Framework, 2015, 85).

It seems that the necessity of anti-blasphemy laws should be seriously reconsidered, and the recent approach of the Council of Europe bodies suggests that preserving such provisions in the domestic legal systems may at some point in future be found incompatible with the ECHR.

REFERENCES:

Dacey, Austin: The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights, London: Bloomsbury (2012).

European Commission for Democracy Through Law (Venice Commission): Report on the relationship between freedom of expression and freedom of religion: The issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, Venice, 17–18 October 2008, CDL-AD (2008)026.

European Parliament, Directorate-General for Internal Policies: The European legal framework on hate speech, blasphemy and its interaction with freedom of expression, Brussels (2015).

Leveleux-Teixeira, Corinne: Entre droit et religion: le blasphème, du péché de la langue au crime sans victime, Revue de l’histoire des religions 2011, No. 4, 587.

Martínez-Torrón, Javier, Cañamares Arribas, Santiago (eds.): Tensiones entre libertad de expresióny libertad religiosa, Valencia: Tirant lo Blanch (2014).

Parliamentary Assembly of Council of Europe: Recommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion.

Uitz, Renáta: Freedom of religion in European constitutional and international case law, Council of Europe Publishing (2007).

OTTO-PREMINGER-INSTITUTE v. AUSTRIA (ECtHR 20/09/1994, 13470/87).

WINGROVE v. UNITED KINGDOM (ECtHR 25/11/1996, 17419/90).

Wojciech Brzozowski

Caricatures / Cartoons

DEF: Now mostly used synonymously, the terms caricature (from Lat. carrus > Ital. caricare, to overload or surcharge, and hence to exaggerate) and cartoon (Lat. charta > Ital. carta, cartone, carton or cardboard) denote the satirical and hyperbolical representation of persons or societal and political issues by graphic means. Viewed through a cultural lens, the rights related to caricatures as culture have been most prominent. Caricatures can be considered a means for individuals, groups and communities ‘to build their world view representing their encounter with the external forces affecting their lives’ (cf. CESCR, General Comment no. 21, 2009). Offering, in the words of Sigmund Freud, a means to unmask disingenuous grandeur and to disparage the powerful, caricatures have been an important element in Western political discourse since at least the 18th century (Fuchs, 1921; Langemeyer, 1984). Cartoonists such as James Gillray, Honoré Daumier, Thomas Nast, David Low or, more recently, Kevin Kallaugher have provided poignant commentary on current affairs; satirical periodicals such as Simplicissimus, Punch, La Caricature, or Charlie Hébdo have a long tradition as well.

More recently, however, caricatures have also been perceived as a threat to culture, namely in the context of lampooning faiths and religious figures. Both aspects – caricatures as an important means of criticism and as an attack on religion – have been at evidence in the so-called Mohammed cartoons controversy that originated in a series of drawings published in a Danish newspaper in 2005.

INSTR: As an expressive medium, caricatures are protected by international and regional provisions on freedom of speech; on the national level, they may enjoy – often congruent – constitutional protection as works of art (e.g. in Article 5(3) of the German Grundgesetz). Article 19 ICCPR, which safeguards the right to ‘impart information and ideas of all kinds in the form of art, or through any other media’, and Article 10 ECHR, which protects ‘information and ideas’, also cover caricatures, as does the pertinent provision in the American Convention on Human Rights (Article 13(1)). The differing wordings in other regional instruments, however, already indicate varying scopes of protected expressions, possibly hinting at cultural differences as well: Article 9(2) ACHPR protects the right to express one’s opinions ‘within the law’; according to the Cairo Declaration, ‘everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah’ (Article 22(a)), and the revised Arab Charter on Human Rights requires ‘conformity with the fundamental values of society’ (Article 32(2)). Nor is speech unlimited under the ICCPR or the ECHR: As any other form of expression, caricatures may be restricted if they infringe, inter alia, upon the rights and reputations of others. Incendiary or racist caricatures are not protected either: In the case of the ECHR they may be considered incompatible with the provisions of the Convention (Article 17), and Article 20 ICCPR obliges state parties to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. This provision was also invoked when, in the wake of the Danish cartoons, members of the Organisation of Islamic Co-operation (OIC) intensified their efforts to introduce new international norms prohibiting ‘defamation of religions’.

CASES: Since caricatures have generally been subsumed under provisions of free speech, the criteria developed by courts for limiting speech are also applicable, particularly with regard to defamation. Under the ECtHR’s categorisation, caricatures will likely constitute value judgments rather than factual statements; therefore, they may not require proof but can still be prosecuted if excessive [PALOMO SÁNCHEZ, 2011]. There is very limited scope, however, for restrictions if a caricature is political in nature or expresses views on questions of public interest [FÉRET, 2007]. The ECtHR acknowledges that caricatures rely on satirical elements, and that satire is ‘a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate.’ As a consequence, the Court examines ‘with particular care’ interference with an artist’s right to such expression [VEREINIGUNG BILDENDER KÜNSTLER, 2007; ERKANLI 2002; LEROY 2008]. Humour, however, does not justify racism or incitement [M’BALA M’BALA, 2015], and it may also be counterbalanced by the protection of morals. On several occasions, the ECtHR has deemed the protection of religious feelings a legitimate aim [e.g. OTTO-PREMINGER-INSTITUT, 1994]. Yet the ECtHR has not assessed the Danish cartoons on the merits [BEN EL MAHI, 2006], nor has any other international body [cf. SAID AHMAD, 2008]. In proceedings before Western national courts, these caricatures have been protected as legitimate speech on politically relevant matters [DET ISLAMISKE TROSSAMFUND (2), 2008; VAL, 2008]. In Jordan and Yemen, however, editors who republished the cartoons were found guilty under (religiously inspired) provisions prohibiting defaming the Prophet.

VIEWS: The assessment of the Danish cartoons differed not only in the courts according to jurisdiction. There were also significant differences in their political and scholarly appraisal. When first published in 2005, the drawings were mostly criticised by politicians as unnecessarily divisive and offensive. When violent attacks on publishers and cartoonists ensued, however, more emphasis was put on the cartoons as exercise of free speech; after the attacks on the French satirical Charlie Hébdo in January 2015, the right to criticise religion was elevated to a central tenet of public debate.

In the literature, those critical of the cartoons highlighted the multicultural aspects of the controversy and saw it as evidence of increasing ‘Islamophobia’ and of lacking acceptance for religious minorities (Sutcliffe 2007; Cram 2009; Doebbler 2009). It was also pointed out that previous case law (especially of the ECtHR) did not rule out regulation of religiously offensive speech or of a discriminatory nature (Cerone 2008; Kahn 2011).

Particularly in the context of efforts to restrict ‘defamation’ of religion, however, most authors have underlined the important role that caricatures play in public discourse; recourse to religious norms was considered unsuitable in a liberal democracy; the conceptual and procedural difficulties when protecting religions from insult would also be considerable (Boyle, 2006; Post, 2007; Bielefeldt, 2012).

CONCL: Caricatures can be considered a (regional) cultural practice that is entitled to protection, within the legal framework and the limits established for other forms of expression. This protection extends to satirical attacks on religious tenets, which have been an early and continuing feature of caricature, as illustrated by the thirdcentury Alexamenos graffito in Rome or the anti-Papal and anti-Lutheran drawings of the Reformation and Counter-Reformation. The controversy over the Danish cartoons has shown, however, that there are stark cultural differences with regard to what may be the subject of criticism and ridicule, particularly with regard to religion.

Yet the OIC’s attempts to establish ‘defamation of religion’ as a new limitation on the international level of expression in general and satire in particular have failed. On the contrary, the debate over defamation has led to a clarification – and fortification – of the protection that caricatures and other potentially offensive means of expression enjoy within the political and societal discourse, regardless of potential offence to religions (cf. Venice Commission, 2010; CCPR, General Comment No. 34 (2011)). Still, the cartoon controversy has shown that while protection for cultural rights may well be universal (CESCR, General Comment no. 21 (2009)), in many instances the objects of such rights clearly are not. The converse legal reactions to the cartoons indicate some significant differences in legal culture(s). Where religion continues to provide the main rationale for a legal order, religious precepts on blasphemy, sacrilege and even apostasy may require the prohibition of certain caricatures. In a secularised legal order, on the other hand, religion may be an object of protection, yet it does no longer determine the substance of commands and prohibitions (Langer, 2013). Under a human rights approach, the religious sensitivities of the faithful may well be safeguarded; a religious creed or its prophets, on the other hand, are not protected.

REFERENCES:

Bielefeldt, Heiner: “Freedom of Religion or Belief: A Human Right under Pressure”, 1 Oxford J. Law & Rel. (2012).

Boyle, Kevin: “The Danish Cartoons”, 24 Neth. Q. Hum. Rts. (2006).

Cerone, John: “Inappropriate Renderings: The Danger of Reductionist Resolutions”, 33 Brook. J. Int’l L. (2008).

Cram, Ian: “The Danish Cartoons, Offensive Expression, and Democratic Legitimacy”, in I. Hare & J. Weinstein (eds.): Extreme Speech and Democracy, Oxford: Oxford University Press (2009).

Doebbler, Curtis F. J.: “Danish Cartoons: Freedom of Speech versus Freedom of Religion?”, in S. Yee & J.-Y. Morin (eds.): Multiculturalism and International Law, Leiden: Marinus Nijhoff (2009).

Fuchs, Eduard: Die Karikatur der europäischen Völker, 2 Parts, 4th ed., Munich: Langen (1921).

Kahn, Robert A.: “A Margin of Appreciation for Muslims: Viewing the Defamation of Religions Debate through Otto-Preminger-Institut v. Austria”, 5 Charleston Law Review (2011).

Langemeyer, Gerhard et al. (eds.): Bild als Waffe: Mittel und Motive der Karikatur in fünf Jahrhun-derten, Munich: Prestel (1984).

Langer, Lorenz: Religious Offence and Human Rights: The Implications of Defamation of Religions, Cambridge: Cambridge University Press (2014).

Post, Robert C.: “Religion and Freedom of Speech: Portraits of Muhammad”, 14 Constellations (2007).

Sutcliffe, Adam: “Power and the Politics of Prejudice”, in M. Bunzl (ed.): Anti-Semitism and Islamophobia, Chicago: Prickly Paradigm Press (2007).

Venice Commission: Blasphemy, Insult and Hatred: Finding Answers in a Democratic Society, Strasbourg: Council of Europe Publishing (2010).

BEN EL MAHI & OTHERS v. DENMARK (ECtHR 11/12/2006, 5853/06).

DET ISLAMISKE TROSSAMFUND I DANMARK v. JYLLANDSPOSTEN (2) (Vestre Landsret (High Court), 19/6/2008, U.2008.2302.V).

ERKANLI v. TURKEY (Admissibility) (ECtHR 25/6/2002, 37721/97).

FÉRET v. BELGIUM (ECtHR 16/7/2009, 15615/07).

LEROY v. FRANCE (ECtHR 2/10/2008, 36109/03).

M’BALA M’BALA v. FRANCE (ECtHR, 10/11/2015, 25239/13).

OTTO-PREMINGER-INSTITUT v. AUSTRIA (ECtHR 20/9/1994, 13470/87).

PALOMO SÁNCHEZ AND OTHERS v. SPAIN (ECtHR 12/9/2011, 28955/06, 28957/06, 28959/06, 28964/06).

SAID AHMAD & ASMAA ABDOL-HAMID v. DENMARK (CCPR, 18/4/2008, UN Doc. CCPR/C/92/D/1487/2006).

VAL & ET AL. v. UNION DES ORGANISATIONS ISLAMIQUES DE FRANCE (Cour d’appel, Paris, 12/3/2008, no. 07/02873).

VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA (ECtHR 25/1/2007, 68354/01).

Lorenz Langer

Censorship

DEF/ HIST: Basically, we could distinguish between ex-ante censorship (or ‘prior restraint’), i.e. the suppression of free expressions, including artistic or media content, before their creation, presentation or publication, and ex-post measures executed to prevent their exposure to a wider public. However, in the digital age such distinctions tend to become obsolete, especially due to the simultaneity of producing and distributing information and other content on the Internet. More sense, especially in legal and policy terms, could make a differentiation between direct (via a mandated institution, e.g. of the state) or indirect censorship, the latter often related to ‘selfcensorship’.

In China, Greece and other ancient societies, ‘censorship was considered a legitimate instrument for regulating the moral and political life of the population’ (Newth, 2010) – a goal that survived, in some countries, the ages until the 21st century. The actual term dates back about 2500 years when in Rome the office of a censor was established for the first time. Most prominent, and often rigidly enforced, has been the Index Librorum Prohibitorum, introduced by the Catholic Church in 1559 and abolished as late as 1966. This ‘Index’ intended to ban books considered to be heretical or morally / ideologically dangerous and has become a synonym for traditional forms of censorship. Similar practices have been, and partly still are, used by other religious denominations or political systems, particularly against intellectual →dissidents.

The focus of censorship today has generally shifted from books or →literary expressions to more popular media and cultural manifestations such as images (e.g. →caricatures), computer games and other →digital media, music and films. In addition, the current means of controlling content are far more sophisticated than in the past, ranging from corporate interventions such as →Internet content suppression to different forms of state surveillance, which endanger →privacy and thus motivate self-censorship, often in an act of self-defence. Private companies increasingly employ their own mechanisms of content supervision, including in the controversial form of →access control technologies, implemented in digital media to shield →intellectual property.

INSTR: According to the Council of Europe/ ERICarts ‘Compendium’ monitoring system, several European states abolished their previous forms and institutions for censorship during the past decades (e.g. Armenia; Croatia; Georgia; the Netherlands; Russia; Sweden and the UK, the latter as regards theatre scripts). However, free speech and artistic or media freedom can still be confronted with legal or practical limitations in these and many other countries. For example, Article 5 of the German Constitution (Grundgesetz) guarantees freedom of expression and information and specifically mentions the arts, science, research, teaching, the press, broadcasting and films. While Article 5(1) officially rules out censorship, the following Article 5(2) stipulates that ‘these rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.’ In principle, such potentially farreaching exemption clauses are compatible with major instruments protecting human rights like the →ECHR or the ICCPR, the latter enabling, in Article 19(3), limitations of freedom of expression that ‘are provided by law and are necessary (a) to protect the rights or reputations of others; (b) to protect national security or public order, or public health or morals’.

Even in Europe, for example in Malta, national regulations leading to direct or indirect forms of censorship created problems for →artists and arts institutions. While they are sometimes justified with the above limitations, the UN Human Rights Committee (ICCPR) underlined that ‘the mere fact that an idea is disliked or thought to be incorrect does not justify its censorship.’ (ECP / IFACCA / Creative Scotland, 2013). In addition, regulations have to: (a) ‘meet standards of clarity and precision so that people can foresee the consequences of their actions’; (b) ‘be a legitimate aim... For example, a desire to shield a government from criticism can never justify limitations on free speech’; and (c) ‘Any limitation of the right to freedom of expression must be truly necessary.’ (ibid)

Currently, controversial issues regarding state interventions concern incitement to (e.g. racial) hatred and ‘defamation of religion’. The former appears to be settled already with Article 20 ICCPR – which calls for the legal prohibition of ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ – as well as through related case law [e.g. ROSS, 2000]. As regards religion, it has been pointed out that ‘human rights law protects individuals and groups, not belief systems. You cannot defame a religion. In fact, it should be possible to scrutinise, openly debate, and even harshly criticise belief systems, opinions, and institutions, including religious ones’ when exercising one’s right to freedom of expression (Pillay, 2013).

Regulations aiming to protect children/youth from offensive content exist in nearly all countries worldwide, sometimes with a spill-over effect to adults. In contrast with measures trying to control or suppress political views or religious beliefs, this task can also be achieved with some success through mandatory industry standards such as consumer age ratings replacing former state control mechanisms. An example is the Pan European Game Information (PEGI) content rating system that has been developed by the Interactive Software Federation of Europe (ISFE) and is supported by the European Commission. With regard to such classification procedures, the UN Special Rapporteur in the field of cultural rights (2013) calls on states to ensure (a) the independence of classification bodies; (b) the participation of evaluators from the arts field; (c) transparent terms of reference, rules of procedure and activities; and (d) effective appeal mechanisms.

CASES: Until now, the ECtHR did not deal directly, i.e. under that term, with censorship issues in the cultural domain, even if the expression has been occasionally used in matters regarding media freedom [e.g. SALIYEV, 2010]. Nevertheless, claims against censorship can be assessed in the light of the court’s consistent call for a spirit of openness and tolerance in democratic societies, especially if →public broadcasting and other public media or institutions are involved, for which the ECtHR has demanded legal and practical guarantees for a ‘pluralistic’ service [cf. WOJTAS-KALETA, 2009]. In the case of the assassinated Turkish–Armenian journalist Hrant Dink, the court recapitulated its opinion about states’ obligations to guarantee freedom of expression and ruled that Turkey had failed to ‘create a favourable environment for participation in public debate by all persons concerned, enabling them to express their opinions and ideas without fear’ [DINK v. TURKEY, 2010]. In certain cases, the state could also be obliged to protect the right to freedom of expression ‘against interference by private persons’ or companies [PALOMO SÁNCHEZ AND OTHERS v. SPAIN, 2011]. However, according to the court [MELNYCHUK v. UKRAINE, 2010] this ‘does not give private citizens or organisations an unfettered right of access to the media in order to put forward opinions’, e.g. when insisting on the ‘right of reply’.

Other issues related to claims of censorship concern the domain of →authors’ rights. Within the Anglo–American doctrine of copyright, authors often feel at the mercy of commercial users of their works, especially if the latter fall under the category of ‘work for hire’. In the continental European tradition of so-called ‘moral rights’, even the heirs and estates of deceased playwrights consider themselves entitled to suppress new artistic interpretations, like in the well-known case of Bertolt Brecht’s inheritors, who consistently rejected stage directors and actors they consider inappropriate to represent the works of the author. If this understanding of the disclosure right would have been as ‘eternal’ as some of its protagonists are asserting – and could have been rigidly enforced – ’we would have lost Virgil’s Aeneid, possibly Ovid’s Metharmophoses, most of Kafka, all of Foucault’s posthumous works, some of Philip Larkin, Sainte-Beuve, T.S. Eliot, Anatole France, George Sand... Emily Dickinson’s poems would be known only in her family’s heavily edited version.’ (Baldwin 2014). Luckily, contemporary case law now tends towards underlining the need to find a balance between conflicting rights, often in favour of the freedom of new artistic expressions, e.g. in the case of a play of Heiner Müller who extensively quoted Bertolt Brecht [GERMANIA 3, 2000].

With regard to digital media, the UN Human Rights Council recently (2016) reaffirmed its position that human rights people enjoy offline are also protected online. In this context, the HRC denounced measures to prevent or disrupt access to the Internet or specific platforms, while recognising the importance of access to information and online privacy for the realisation of the right to freedom of expression and to hold opinions without interference. In a similar spirit but with regard to the demands of a copyright licensing society for the installation of an Internet content filtering system, the CJEU [in SCARLET, 2011] ruled that such practices ‘would involve a systematic analysis of all content and the collection and identification of users’ IP addresses’, which ‘could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content.’

VIEWS: According to the Special Rapporteur of the UN Human Rights Council in the field of cultural rights, Farida Shaheed (2013), ’artists should be able to explore the darker side of humanity, and to represent crimes or what some may consider as ‘immorality’, without being accused of promoting these.’ Rather than excluding ‘controversial works’ frompublic display because of ‘unprepared audiences’, she pleads for an enhancement of →arts education, which she sees as ‘a strong and efficient alternative to censorship.’

While the literature deals with censorship mostly in the context of balancing different rights at stake, e.g. freedom of expression vs. →defamation and safeguarding the reputation of persons or companies, a number of international NGOs (e.g. Article 19) as well as advocacy and professional organisations on regional or national levels (e.g. Culture-Action-Europe or IETM) turned this issue into a key element of their campaigns for free arts and media. In this context, annual lists of violations of artistic freedom are published (e.g. by Freemuse), which suggest an on-going practice of censorship, especially in Asia and in the Arab countries.

However, Mette Newth (2010) reminds us that when criticising censorship and other human rights abuses in different parts of the world, Western activists ‘should not forget the dark history of censorship in Europe and its colonized countries’, including ‘the cruel suppression of indigenous cultures, languages and non-written literature for which Europeans also are responsible’. In addition, she insists that we should not fail to look at our own abuses of human rights: ‘The lack of criticism in the UN of European censorship – for example the systematic purging of libraries in Southern France by Front National – gives perpetrating governments such as China or Burma a welcome opportunity to accuse Western countries of one-sided criticism’ and will not ‘create or improve a climate of open-minded dialogue’. Indeed, we should not hesitate to underline that, according to different world indexes, state surveillance of the Internet is probably as pervasive in the USA as in Russia and that a number of NGOs committed to defending human rights are currently facing difficult times not only in Egypt or India, but also in Israel or Hungary.

CONCL: It is highly significant for our topic that this contribution, scheduled to be written by an author in an Asian country, had to be reassigned last minute to one of the editors. Conditions for the free exercise of human rights vary greatly around the globe which, in this particular case, could have endangered the future professional life of the expert had he insisted in delivering the article like originally planned. This shows, in a nutshell, that we still have a long way to go until the promises of freedom of expression and cultural diversity, enshrined in international legal instruments, can successfully stand the reality test. In fact, many states seem to use their →margin of appreciation to draw additional boundaries in the name of principles like ‘social cohesion’, security, national honour or the protection of religious feelings and morals. Some pressure groups in society as well as media and companies or institutions in the cultural domain play their part in this development, be it for financial reasons or even political correctness. Precautionary self-censorship may become the norm instead of an exception – and open-minded artists will be the first victims of this trend.

REFERENCES:

Atkins, Robert and Mintcheva, Svetlana (eds.): Censoring culture, Contemporary threats to free expression, New York: The New Press (2006).

Baldwin, Peter: The Copyright Wars. Three Centuries of Trans-Atlantic Battle, Princeton: Princeton University Press (2014).

Council of Europe/ERICarts (eds.): Compendium of Cultural Policies and Trends in Europe, Strasbourg/Bonn (accessed 07/2016 via www. culturalpolicies.net).

ECP / IFACCA / Creative Scotland (eds.): Introduction to Policy – Freedom of Expression, Background Paper for the Edinburgh Symposium, 24 – 26 September 2013.

Korpe, Marie; Reitov, Ole and Cloonan, Martin: “Music censorship from Plato to the Present”, in Brown, Steven and Volgsten, Ulrik (eds.): Music and Manipulation.On the Social Uses and Social Control of Music. New York/ London: Berghahn Books (2006).

Newth, Mette: The Long History of Censorship, Oslo 2010 (accessed 07/2016 via www.beaconforfreedom.org/).

Pillay, Navanethem: Freedom of Expression and incitement to hatred in the context of International Human Rights Law, Lecture at the London School of Economics by the United Nations High Commissioner for Human Rights, London, 15 February 2013 (accessed 07/2016 via www.ohchr.org).

Stoycheff, Elizabeth: “Under Surveillance: Examining Facebook’s Spiral of Silence Effects in the Wakeof NSA Internet Monitoring”, Journalism & Mass Communication Quarterly, 1–16 (2016).

UN Human Rights Council: Resolution on The promotion, protection and enjoyment of human rights on the Internet (27/06/2016, A/HRC/32/L.20).

UN Special Rapporteur in the field of cultural rights: The right to freedom of artistic expression and creativity, Geneva: Human Rights Council (2013), A/HRC/23/34.

GERMANIA 3 (German Fed. Const. Court 1 29/06/2000, BvR 825/98).

ROSS v. CANADA (HRCee 18/10/2000, no. 736/1997).

SALIYEV v. RUSSIA (ECtHR 21/10/2010, 35016/03).

SCARLET EXTENDED SA v. SABAM (CJEU 24/11/2011, C-70/10).

WOJTAS-KALETA v. POLAND (ECtHR 16/07/2009, 20436/02).

Examples of websites of international NGOs engaged for freedom of expression and/ or against censorship (all accessed 07/2016):

www.article19.org/

www.freedomhouse.org

freemuse.org/

globalfreedomofexpression.columbia.edu/

www.indexoncensorship.org

rsf.org/en

Andreas Joh. Wiesand

Charter of Fundamental Rights of the European Union (CFR)

INTRO: The CFR (the Charter) is a bill of rights binding the European Union and EU Member States acting within the scope of the EU law. Although the EU does not have a formal, written constitution, the Charter could be regarded as a part of substantive constitutional legal order. It was adopted by the European Convention on 7 December 2000 to make fundamental rights more visible to EU citizens and other persons living in the EU. Initially, there was no political consensus to make the Charter part of the EU treaty law. The Charter remained as a solemn declaration until 2009 when it entered into force. Although the planned Treaty establishing the Constitution for Europe incorporated the Charter in its provisions, it failed in the ratification process due to the negative outcome of national referenda in France and the Netherlands. Eventually, the Treaty of Lisbon recognised the rights, freedoms and principles set out in the Charter as a part of the treaty law (Article 6(1) TEU). Yet, this recognition is based on the existing division of competences between the EU and Member States. The Charter neither establishes new rights nor new competences of the EU. Rather the obligation to respect fundamental rights and freedoms sets the limits on the exercise of competences by the EU institutions with due regard to the principle of subsidiarity.

INSTR: In its Preamble, the Charter proclaims that the EU ‘contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organization of their public authorities at national, regional and local levels.’ The Charter contains guarantees of rights, freedoms and principles although the distinction between these categories is far from clear. It covers personal and political rights and freedoms enshrined in the ECHR and additional protocols; rights and freedoms of EU citizens; and other rights and principles recognised in the case-lawof the CJEU. In its substantive part, it is divided in chapters corresponding to values underlying the Charter which are: dignity, freedom, equality, solidarity, justice and citizens’ rights. Notably, cultural rights have only been affirmed in the context of the principle of cultural, religious and linguistic diversity (Article 22) and the right of elderly to participate in social and cultural life (Article 25). Although several rights in the Charter are defined in a progressive way, they are subject to national laws governing the exercise of these rights. Therefore, there is no possibility that the right to marry and the right to found a family (Article 9) will be interpreted contrary to national laws and traditions, in particular when national law defines a marriage as a union between a man and a woman. Likewise, Chapter IV of the Charter does not create justiciable social rights beyond rights already provided for in national law.

The scope, the interpretation, and the application of the Charter remained the subject of political and legal controversy, which led to the adoption of the Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom (so-called British Protocol) and the Declaration concerning the Charter of Fundamental Rights of the European Union attached to the Treaty of Lisbon. Although the British Protocolwas often presented as an opt-out, the CJEU confirmed that the Protocol does not exclude the applicability of the Charter in Poland or the United Kingdom. Hence, the value of the Protocol is merely explanatory with regard to Article 51 of the Charter. According to the CJEU, the Protocol ‘does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions’ [N.S., 2011, para. 120].

CASES: The application of the Charter to national law has been clarified in [ÅKERBERG FRANSSON, 2013]. The CJEU explained that the applicability of EU law entails the applicability of the Charter. Hence, national courts need to ensure compliance with rights guaranteed by the Charter in any case which falls within the scope of the EU law even if relevant national provisions were not adopted to implement EU law. Still, potential conflicts with regard to the application of the Charter are likely to arise in cases before national courts, in particular →Constitutional Courts, may decide to deny the application of EU acts in order to protect constitutional identity of member states (see i.e. Resolution of the Federal Constitutional Court of Germany, 2015). The core of this controversy lies with the question whether member states may apply a more far-reaching protection of fundamental rights in areas where EU law harmonises the protection standard [MELLONI, 2013]. Having regard to the principle of primacy, national law, including constitutional law, should not compromise EU law. Yet, it could be argued that the EU standard should take precedence only when the principles of primacy, unity or effectiveness of the EU law are at stake. As a result, even within the EU, in the area of application of EU law, there is some scope for diversity regarding values which member states consider essential for their constitutional identity. Still, the question whether national standards of protection may prevail ultimately falls under the jurisdiction of the CJEU. At least, it is the case as long as national courts remain in a dialogical relationship with the Luxembourg Court and the preliminary reference procedure to this aim.

CONCL: Notwithstanding the sensible relationship between the CJEU and constitutional courts defending constitutional identity of member states, the CJEU remains the ultimate judicial authority in charge of interpretation of the Charter. The CJEU also oversees whether EU acts and national laws implementing EU law comply with its provisions. Although Charter rights corresponding to rights guaranteed by the ECHR shall be accorded the interpretation established in ECtHR case-law, the EU may provide more extensive protection (Article 52(3)). Notwithstanding the evolutionary interpretation of Convention rights and freedoms, the ECHR contains only the minimum standard of protection. Although the interpretation of analogous rights set out in the Charter and the ECHR is often similar, the CJEU may develop its own standards in the view of the treaty objectives and values (i.e. in the areas concerning privacy, digital rights, positive measures). Until the EU accedes to the ECHR in pursuance of Article 6(2) TEU, the Charter will set out the framework of a system of human rights protection in the EU and the CJEU will remain the guardian of its autonomy. Following the [KADI, 2008] case saga, the same conclusion holds true with respect to international public law and the CJEU review of legal measures adopted by UN bodies binding upon the EU MS in the light of the Charter.

REFERENCES:

Morano-Foadi, Sonia, Lucy Vickers (eds.): Fundamental Rights in the EU: A Matter for Two Courts, Hart-Bloomsbury (2015).

Palmisano, Giuseppe (ed.): Making the Charter of Fundamental Rights a Living Instrument, Brill-Nijhoff (2014).

Peers, Steve, Hervey, Tamara, Kenner, Jeff, Ward, Angela (eds.): The EU Charter of Fundamental Rights: A Commentary, Oxford: Hart Publishing (2014).

ÅKLAGAREN v. HANS ÅKERBERG FRANSSON (CJEU 7/05/2013, C-617/10).

R. v. OLG DÜSSELDORF (German Fed. Const. Court 15/12/2015, 2 BvR 2735/14).

KADI AND AL BARAKAAT INTERNATIONAL FOUNDATION v. COUNCIL AND COMMISSION. (CJEU 3/09/2008, C–402/05 P and C–415/05 P).

MELLONI v. MINISTERIO FISCAL (CJEU 2302.2013, C-399/11).

N. S. v. SECRETARY OF STATE FOR THE HOME DEPARTMENT and M. E. and OTHERS v. REFUGEE APPLICATIONS COMMISSIONER AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM (CJEU 10/12/2010, joined cases C-411/10 and C-493/10).

Anna Śledzińska-Simon

Children

(Cultural Rights of Children)

DEF: A child is defined in the UN Convention on the Rights of the Child (CRC) as a person under the age of 18, unless national laws mandate an earlier age of majority (Article 1). International jurisprudence [THE STREET CHILDREN, 1999, para 188; BULACIO, 2003 para 133] tends to be in favour of the ‘18 years old’ rule but the UN CRC Committee stresses that when states implement children’s rights they must take into consideration the children’s development and capacities.

INSTR: All human rights instruments, both universal and regional, apply equally to children and adolescents. The CRC guarantees, inter alia, a number of child-specific cultural rights for all children without discrimination of any kind, including immigration status or statelessness: right to religion (Article 14), right to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts (Article 31); right to education and implementation of educational programmes that respect ‘the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own’ (Articles 28 and 29); right of disabled children to physical, mental and cultural/spiritual development (Article 23). As minority/ indigenous children are vulnerable to the denial of their cultural rights, the CRC provides for mass media to have particular regard to their linguistic needs (Article 17 (d)) and guarantees children’s right to enjoy their own culture, language and religion (Article 30). The right in Article 30 for indigenous children is conceived as being both individual and collective and it ‘may be closely associated with the use of traditional territory and the use of its resources’ (CRC GC No 11, para 16). States are obliged to take special measures to enable minority, indigenous, migrant or disabled children to preserve and develop their culture and to have effectively access to cultural resources, infrastructures, activities and educational materials in accessible formats. Furthermore, while children are recognised as transmitters of cultural values and are entitled to their culture, states are obliged to protect them from practices perpetuated by culture and tradition (female genital mutilation, child and forced marriage, sex practices etc.) that are harmful to their health and development. Children’s cultural rights are protected even during wartime (Articles 24 and 50 of 4th Geneva Convention relative to the Protection of Civilian Persons in Time of War, Article 78 (2) Protocol I to the Geneva Conventions).

In the European context, there are no childspecific provisions that protect children’s cultural rights and they are dealt either within the broader context of socio-economic rights (i.e. Articles 7, 15, 17 and 30 ESCRev; Articles 14, 22, 26, 34 EU CFR), or under specific group rights (see Article 14 FCNM) or under specific provisions of the ECHR, (i.e. Articles 8, 9, 10, 14 ECHR, Article 2 of Protocol 1 to the ECHR (education)).

The African human rights system is the most vocal on the protection of children’s cultural rights. The 1990 AfCRWC includes provisions on the right to education of the girls, gifted or disadvantaged and handicapped children (Articles 11(3)(e), 13), protection of children against apartheid (Article 26), the inclusion of ‘Africa-specific’ aims of education (Article 11(2), the right to leisure and participation in cultural life and the arts (Article 12) and a provision dealing expressly with protection against harmful social and cultural practices (Article 21). Girls’ rights are further protected under the Protocol to the AfCHPR on the Rights of Women in Africa 2003 (Article 17 Right to Positive Cultural Context). Finally, the African Youth Charter 2006 contains provisions on the rights of persons between the age of 15 and 35 (Article 22 Leisure, Recreation, Sportive and Cultural Activities).

CASES: In the European context children’s cultural rights have been largely unaddressed or underdeveloped. In a number of cases the ECtHR has held that states must take positive measures against wrongful placement of Romani children in special schools [e.g. in HORVATH 2013; ORSUS 2010]. The European Committee of Social Rights has found that educational practices regarding the placement of children with disabilities amounted to segregation and discrimination [AUTISM EUROPE 2003; MDAC 2010]. The ECtHR has also examined the issue of religious education and has held that education or teaching should be ‘objective, critical and pluralistic’ while ensuring respect for parents’ religious and philosophical convictions [KJELDSEN 1976; FOLGERO 2007]. In two cases the ECtHR has found that Turkey had to reform religious education in schools because the subject taught was likely to raise a conflict of values in the children [MANSUR 2015; ZENGIN2008]. The ECtHR has held that the right to education does not guarantee the right to education in a particular language [LINGUISTIC CASE 1968]; however, the ECtHR has also found it difficult to dissociate language from education and the ethnic and cultural background of the children when they have received primary education in their mothertongue [CYPRUS 2001, para 275–80]. Moreover, in a number of cases [see e.g. DOGRU; R. SINGH, 2009] which concerned the expulsion of pupils from French schools because of their wearing of religious garment and the alleged violation of the freedom of religion and the prohibition of discrimination, the ECtHR declared the claims of these applicants manifestly ill-founded on inadmissibility grounds. The same issue was addressed differently by the Human Rights Committee [SINGH HRCee, 2013] which held that the expulsion from school was neither necessary nor proportionate to the benefits achieved. International human rights judicial bodies often make reference to the CRC provisions when interpreting regional human rights instruments’ provisions with regard to children’s cultural rights and special measures of protection, i.e. minority or indigenous children’ right to preserve their distinctive identity [see e.g. THE STREET CHILDREN, 1999, para 144; ADVISORY OPINION ON THE JURIDICAL CONDITION AND HUMAN RIGHTS OF THE CHILD, 2002, para 84]. The IACHR has held that Article 30 of the CRC ‘establishes an additional and complementary obligation that gives content to Article 19 ACHR, and that consists of the obligation to promote and protect the right of indigenous children to enjoy their own culture, their own religion, and their own language’ [XAKMOK KASEK, 2010 para 261; CHITAY-NECH, 2010, para 164–170]. The African Committee of Experts on the Rights and Welfare of the Child [ACERWC] has issued a decision on culture-related rights of Nubian children, i.e. nondiscrimination, the right to name and nationality, the right to education and the highest attainable standard of health [IHRDA 2011].

VIEWS: Children’s cultural rights are neglected in literature. To a certain extent this relates to the standing of cultural rights in the human rights spectrum (civil and political rights vs ESC rights) and the dominant paternalistic perceptions of children as passive objects of protection (Price Cohen 1991). The innovation of CRC in including all social, economic, cultural, civil and political rights in a single framework and affirming children’s right to participate in all decisions affecting them has, on the one hand, provided room for children to be viewed as active bearers of rights and has, on the other hand, resulted in reading the CRC as a combination of protection, provision (states to provide access to services) and participation (i.e. children to act and participate in society and in decisions concerning them) rights (van Bueren 1995). However, there is still controversy as to the competence and capacity of children to exercise their rights independently and autonomously (Reynaert et al 2011, Verhellen 2015). This is reflected in the policies of some Arab and Asian countries too.

CONCL: Despite the overwhelming legal instruments and human rights monitoring and complaint mechanisms, violations of children’s cultural rights remain either unreported or unaddressed. The UPR and the UN Special Rapporteurs (i.e. Special Rapporteur in the field of cultural rights, Special Rapporteur on the Rights of Persons with Disabilities, Special Rapporteur on the Right to Education, Special Rapporteur on the Rights of Indigenous Peoples, Special Rapporteur on Minority issues) are increasingly shedding light onto the existing legal, institutional, economic or cultural lacunae with regard to the poor recognition of children and adolescents’ cultural rights, especially the rights contained in Article 31 CRC.

The situation of children’s cultural rights has worsened during the past few years due to the financial crises and austerity measures that have led to severe cuts in public spending. To this end, the CRC Committee has affirmed states’ minimum core obligations with regard to public spending to ensure the satisfaction of, at the very least, essential levels of cultural rights of boys and girls (CRC GC No. 19 para 37). The CRC Committee has also recognised the role and responsibilities of the private sector in the areas of recreation, cultural and artistic activities, as well as civil society organisations providing such services for children (CRC GC No. 17). In 2016, the UN Special Rapporteur in the field of cultural rights recognised the issue of the cultural rights of children and adolescents, both girls and boys, and education about the importance of cultural rights and cultural heritage as an urgent concern of high priority for her mandate.

REFERENCES:

Jancic Cvejic, Olga (ed.): The rights of the child in a changing world: 25 years after the UN Convention on the Rights of the Child, Cham: Springer (2016).

Liefaard, Ton and Jakob Egbert Doek (eds.): Litigating the rights of the child: the UN Convention on the Rights of the Child in domestic and international jurisprudence, Dordrecht: Springer (2015).

Price Cohen, Cynthia: “Jurisprudence on the Rights of the Child: Individual Rights Concept and their Significance of Social Scientists”, 46 (1) American Psychologist (2005) 60.

Reynaert, Didier et al (eds.): Kinderrechten: Springplank of struikelblok? Naar een kritische benadering van kinderrechten, Intersentia: Antewrp (2011).

Van Bueren, Geraldine: The International Law on the Rights of the Child, The Hague: Kluwer (1995).

Verhellen, Eugeen: “The Convention on the Rights of the Child: Reflections from a historical, social policy and educational perspective” in Vandenhole Wouter et al: Routledge International Handbook of Children’s Rights Studies, Oxon: Routledge (2015).

CEDAW: Joint General Recommendation/ General Comment No. 31 and No. 18 CRC Committee on the Rights of the Child on Harmful Practices (2014).

CESCR: General Comment No. 21: The Right of Everyone to Take Part in Cultural Life (2009).

CRC: General Comment No. 11: Indigenous Children and their Rights under the Convention (2009).

CRC: General Comment No. 17: The Right of the Child to Rest, Leisure, Play, Recreational Activities, Cultural Life and the Arts (art. 31) (2013).

CRC: General Comment No. 19: Public Spending and the Rights of the Child (2015).

UN Committee on the Rights of the Child (CRC): General Comment No. 20: Implementation of the Rights of the Child during Adolescence (2016).

UN Human Rights Committee (CCPR): General Comment No. 17: The Rights of the Child (1989).

UN Human Rights Council: Report of the Special Rapporteur in the field of cultural rights, 3/2/2016, A/HRC/31/59.

ADVISORY OPINION ON THE JURIDICAL CONDITION AND HUMAN RIGHTS OF THE CHILD (IACtHR 28/8/2002, OC-17/02).

[AUTISM] INTERNATIONAL ASSOCIATION AUTISM-EUROPE v. FRANCE (European Committee of Social Rights 13/2002, 4/11/2003).

BULACIO v. ARGENTINA (IACtHR 18/9/2003, Series C No. 100).

CHITAY-NECH ET AL v. GUATEMALA (IACtHR 25/5/2010, Series C No. 212).

CYPRUS v. TURKEY (ECtHR 25781/94, 10/5/2001).

DOGRU v. FRANCE (ECtHR 4/3/2009, 27058/05).

FOLGERO AND OTHERS v. NORWAY (ECtHR 29/6/2007, 15472/02).

HASAN AND EYLEM ZENGIN v. TURKEY (ECtHR 9/1/2008, 1448/04).

HORVATH AND KISS v. HUNGARY (ECtHR 29/4/2013, 11146/11).

[IHRDA] INSTITUTE FOR HUMAN RIGHTS AND DEVELOPMENT IN AFRICA & OPEN SOCIETY JUSTICE INITIATIVE ON BEHALF OF CHILDREN OF NUBIAN DESCENT IN KENYA v. KENYA, (The African Committee of Experts on the Rights and Welfare of the Child, 02/2009, 22/3/2011).

KJELDSEN BUSK MADSEN AND PEDERSEN v. DENMARK (ECtHR 7/12/1976,5095/71; 5920/72; 5926/72).

[LINGUISTIC CASE] RELATING TO CERTAIN ASPECTS OF THE LAW ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM v. BELGIUM (ECtHR, 23/7/1968, 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64).

MANSUR YALCIN AND OTHERS v. TURKEY (ECtHR 16/2/2015, 21163/11).

MENTAL DISABILITY ADVOCACY CENTER v. BULGARIA (European Committee of Social Rights 3/6/2008, 41/2007).

ORSUS AND OTHERS v. CROATIA (ECtHR 16/3/2010, 15766/03).

R. SINGH v. FRANCE (ECtHR 30/6/2009, 27561/08).

SINGH v. FRANCE (Human Rights Committee 4/2/2013, 1852/2008, U.N. Doc. CCPR/C/106/D/1852/2008).

["THE STREET CHILDREN"] VILLAGRAN MORALES ET AL v. GUATEMALA (IACtHR 19/11/1999, 11, Series C No. 63).

XAKMOK KASEK INDIGENOUS COMMUNITY v. PARAGUAY (IACtHR 24/8/2010, Series C No. 214).

Note: Additional references can be found in an extended version of this article on http://www.culture-rights.net

Kalliopi Chainoglou