Introduction to Human Rights Week 6: The limits of Human Rights VIII. Rights subject to public order reservation Let us now deal with the third category of rights that I would like to present: Rights subject to public order reservation. I will also illustrate this category by referring to a provision of the European Convention. It is a provision that we have already mentioned in the course of this week: Freedom of expression which is enshrined in Article 10 of the Convention. When we have a look at these provisions, we notice that their first part is defines the scope of application of the right. It is paragraph 1. The second part deals with the justification of interferences. It is paragraph 2. Let us have a closer look at this second paragraph which is quite long. If you read this second paragraph, you will see a wide range of grounds that can justify the restriction of the right. These grounds can be divided into two categories. The first category includes a set of grounds which refer to public interests or to social needs. For example: national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals and the disclosure of information received in confidence or the guarantee of authority and impartiality of the judiciary. There is also a second category of grounds which refer to the interests of individuals. The notion of "protection of the reputation or rights of others" appear in the provision. The idea is that one person’s freedom ends where another’s freedom begins. Liberties are the rights most present in the category of rights subject to public order reservations. In addition to freedom of speech, there is also, for example, freedom of conscience, of thought and of religion. These freedoms are enshrined in Article 9 of the Convention. Freedoms of association and assembly are protected in Article 11. The right to respect for private and family life is enshrined in Article 8 of the Convention. Together, the aims or grounds that can justify an interference to these rights have to do with the general notion of public order. They have an extensive scope which is broader than limited exceptions. They give many possibilities to the State to restrict rights. The case law confirms the large scope of these grounds. Indeed, it is very rare for a supervisory body to consider that the justification provided by the State is not covered by one of the provided grounds. This is why we can distinguish rights subject to public order reservations from rights subject to limited grounds for restrictions. However, it does not mean that a violation of freedoms never occurs when rights are subject to the general public order reservation. Indeed, other conditions have to be met to justify an interference of the right. be justified. This can be observed in Article 10 of the Convention, which enshrines freedom of expression. The interference must be "prescribed by law" and must be "necessary in a democratic society". Let us consider the conditions of restriction again and let us place them in the order according to which they are examined by the judge, including by the European Court of Human Rights. The Court proceeds in three steps. Let us successively examine the different conditions in the following order: first, the Court examines whether the interference is prescribed by law. It is the legality requirement. Then, the Court examines whether the interference pursues a legitimate aim. This is the condition that we have already examined. Finally, the Court verifies that the interference is necessary in a democratic society. These three cumulative conditions are crucial. They set limits to limits. By subjecting the restrictions to limits, they guarantee that Human Rights cannot be relativized without limits. The requirement that an interference be prescribed by law and be necessary in a democratic society. They also often, but not always, appear among the conditions of restrictions applied to rights subject to limited grounds of restrictions. We saw it when we examined Article 5 of the Convention. Let us remember that Article 5 subjects the deprivation of liberty to the requirement of legality. For this type of right, all depends on the wording of the provision and on the interpretation made by the case law. An analysis of the conditions of these rights is therefore needed. Let us come back on the three conditions for restrictions applying to the rights subject to public order reservation. The first condition, the one saying that the restriction must be prescribed by law, refers to a fundamental element of the rule of law: the general principle of legal security and of foreseeability. Individuals must be able to determine the cases in which the exercise of their rights can be limited and under what conditions these rights can be limited. This allows them to direct their behaviour and to be protected against arbitrary interferences by the State. Other requirements follow from the principle of legal security and of foreseeability. Citizens must have access to the law and it must be precise enough. Vague norms give too much latitude to the authorities and it makes their behaviour too difficult to anticipate. What we mean by the notion of law can vary according to the supervisory bodies. For example, the Inter-American Court of Human Rights requires for the law to correspond to an act adopted by Parliament. So, the act needs to have democratic legitimacy. It comes from the representatives elected by the people. By contrast, the European Court of Human Rights is less strict. It interprets the notion of law in a broad and flexible way. It also includes some norms adopted by the executive and, in the Common Law countries, the norms created through case law. It is therefore quite rare for the Court to observe that a restriction is not prescribed by law. We have already talked about the second condition which requires the restriction to pursue a legitimate aim. We have seen that this condition offers broad possibilities to States to limit the rights. Therefore, it is very easy for the State to meet this second condition. In most cases, the third condition is decisive for the outcome of the case. The condition is that the restriction must be necessary in a democratic society. There are two important elements in this third condition. The first element concerns the necessity: when a Court examines the necessity of a restriction, it balances opposing public and private interests in a concrete case. By doing so, the judge examines a set of factors such as the importance of the interest invoked in order to justify the restriction. According to the European Court of Human Rights, the restriction has to be based on a pressing social need: the suitability of the restrictive measure to reach the intended purpose, the existence of less incisive alternatives to reach the intended purpose and the existence of a reasonable connection between the restrictions of the invoked right and the legitimate public or private interest. According to the European Court of Human Rights, the interference must be examined in order to see whether it is proportional to the intended purpose; whether it achieves a fair balance between the interests in question. The second element of the third condition of restriction concerns the democratic society. The balance of interests must be made in view of the values and characteristics of a democratic society. According to the European Court of Human Rights, these values especially include tolerance, pluralism, open-mindedness and the protection of minorities. These values imply that a balance of interests is not a utilitarian calculus. It is not decisive whether a restriction has been approved by the majority. To give a decisive weight to the preferences of the majority would lead to the tyranny of the majority over the minority. This would go against the values of tolerance and of pluralism. In the light of the fundamental values of a democratic society, the balancing the interests at strike is complicated. There is indeed no common metric. We cannot weigh interests like we weigh goods at the market. Balancing of interests necessarily implies value judgments. This is why people can disagree on the result. Yet, it is an essential part of justice to establish a fair balance between opposing interests. The proof is that justice is symbolized by a blindfolded woman who is holding a balance in one of her hands.