axxyanus schreef: ↑12 nov 2018 10:08
Neen dat vergeet ik niet en zelfs als ik dat zou vergeten zou zijn, blijft je argument waarop ik reageerde blijk geven van totaal onbegrip. Het EHRM is bedoeld om onze mensenrechten te beschermen, niet enkel als hoogste hof van beroep om toe te zien dat de zaken gelopen zijn volgens de wetten van het land in kwestie. Jouw argument hierboven zou enkel geldig zijn in het tegendeel.
Zolang dat je dat basisprincipe niet begrijpt en denkt alles te kunnen terugvoeren tot de Oostenrijkse wetgeving die als laatste toetssteen gebruikt moet worden, heeft het weinig zin om nog verder op je argumenten in te gaan.
Gelukkig zei je er sorry bij.
Als je ALLES gelezen hebt...spreken we mekaar weer!
Nogmaals;
bedoeld om onze mensenrechten te beschermen
dat zijn niet alleen jouw rechten maar ook die van (in dit geval) religieuzen.
Waarbij je het 2e punt van artikel 10 lijkt te vergeten.
https://wetten.overheid.nl/BWBV0001000/2010-06-10
art. 10
Article 10. - Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
In het NL:
https://www.echr.coe.int/Documents/Convention_NLD.pdf
ARTIKEL 10
Vrijheid van meningsuiting
1. Een ieder heeft recht op vrijheid van meningsuiting. Dit recht omvat de vrijheid een mening te koesteren en de vrijheid om inlichtingen of denkbeelden te ontvangen of te verstrekken, zonder inmenging van enig openbaar gezag en ongeacht grenzen. Dit artikel belet Staten niet radio- omroep-, bioscoop- of televisieondernemingen te onderwerpen aan een systeem van vergunningen.
2. Daar de uitoefening van deze vrijheden plichten en verantwoordelijkheden met zich brengt, kan zij worden onderworpen aan bepaalde formaliteiten, voorwaarden, beperkingen of sancties, die bij de wet zijn voorzien en die in een democratische samenleving noodzakelijk zijn in het belang van de nationale veiligheid, territoriale integriteit of openbare veiligheid, het voorkomen van wanordelijkheden en strafbare feiten, de bescherming van de gezondheid of de goede zeden, de bescherming van de goede naam of de rechten van anderen, om de verspreiding van vertrouwelijke mededelingen te voorkomen of om het gezag en de onpartijdigheid van de rechterlijke macht te waarborgen.
T.b.v. artikel 9 is een flink boekwerk geschreven.
Guide on Article 9 of the European Convention on Human Rights
Freedom of thought, conscience and religion
https://www.echr.coe.int/Documents/Guide_Art_9_ENG.pdf
The Court’s task is to determine whether the measures taken at national level are justified in principle and proportionate
In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (Association de solidarité avec les témoins de Jéhovah and Others v. Turkey, § 98).
43. When assessing whether or not an interference is proportionate the Court grants the States Parties to the Convention a certain margin of appreciation in evaluating the existence and extent of the need for that interference. We should remember that the role of the Convention mechanism is fundamentally subsidiary. The national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight, particularly where such matters concern relations between the State and religious denominations.
https://www.echr.coe.int/LibraryDocs/DG ... (2007).pdf
In the I.A. case the applicant, who owned a publishing house, had been fined for offending and insulting religious feelings by publishing a novel that criticised religion in general and Islam in particular. The Court pointed out that the case had to do not only with comments that offended or shocked the reader and with “provocative” opinions but also with “an abusive attack on the Prophet of Islam”.244 On account of the pas- sages in question “believers [might] legitimately feel themselves to be the object of unwarranted and offensive attacks”.245 Given the margin of appreciation which countries were allowed in the matter of attacks on religious beliefs, the respondent state had not breached Article 10.
In the Wingrove case the Court held that the British Board of Film Classification’s refusal, on the ground of blasphemy, to grant a classification certificate to the video Visions of Ecstasy, written and produced by the applicant, was not contrary to Article 10. In such cases, it said, the national authorities were in principle in a better position than the international judge to give an opinion on the exact content of the requirements regarding protection of the rights of others.277
237. Moreover, the Court has held that the provocative portrayals of objects of religious veneration can in some cases violate the rights of believers under Article 9
ARTIKEL 10
https://rm.coe.int/16806f5bb3
A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human Rights
Key Attributes of the Right to Freedom of Expression
The vast majority of cases before the European Court involving freedom of expression involve interferences with that right. Protection of Article 10 rights in these cases is sometimes referred to as being a negative obligation of the State, because in these cases Article 10 limits what the State may do (i.e. by limiting the scope of restrictions that States may impose on the right). Examples of this are laws prohibiting certain kinds of expressions, or measures taken by State authorities to limit the right, such as dismissing a public employee or refusing to licence a newspaper.
Unprotected Speech
As noted above, Article 10 of the European Convention permits States to impose limited restrictions on freedom of expression to protect overriding interests. Beyond this, however, there are some cases where speech does not warrant even prima facie protection under Article 10. Article 17 of the Convention states:
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Expressive activity falling within the scope of Article 17 is not protected by Article 10. As a result, in such cases, the Court does not need to engage in an analysis of whether the limitation on freedom of expression applied by the respondent State is justified under Article 10(2).
The Court has applied Article 17 mainly in the context of racist speech which it deems to undermine fundamental Convention values such as tolerance and non- discrimination.
Although instances of racist speech involving Jews dominate the Article 17/expressive activity interface, the Court has also applied this rule to other types of racist speech. For example, Norwood v. the United Kingdom, 2004, involved a poster depicting the Twin Towers which were destroyed in the attacks of 11 September 2001 in flames and with the caption “Islam out of Britain – Protect the British People”. The Court held that the poster did not enjoy the protection of Article 10 because it fell within the ambit of Article 17, stating:
[T]he words and images on the poster amounted to a public expression of attack on all Muslims in the United Kingdom. Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non- discrimination. The applicant’s display of the poster in his window constituted an act within the meaning of Article 17.
Article 10(2) authorises States to impose restrictions in accordance with its provisions, but it does not require them to. States therefore have a measure of discretion as to whether and to what extent they impose restrictions to protect the various interests listed in Article 10(2). Although there is a measure of commonality, in practice, among European States in this area, there are also significant differences, especially in areas like the protection of morals. States also enjoy a measure of prosecutorial discretion in deciding whether and when to apply national legal restrictions on freedom of expression. In many countries, for example, the authorities tend to ignore expressions of hate speech, on the basis that prosecuting those responsible would actually do more harm than good, for example by providing a wider platform for the dissemination of racist speech.
Article 10(2) establishes a three-part test for assessing restrictions on freedom of expression, as follows:
1. The restriction must be prescribed by law.
2. The restriction must protect one of the interests listed in Article 10(2).
3. The restriction must be “necessary in a democratic society” to protect that
interest.
Legitimate Aims
The second part of the test for restrictions on freedom of expression is that the restriction must pursue a legitimate aim or interest. It is clear, both from the wording of Article 10(2) and the jurisprudence of the Court, that the list of interests found in Article 10(2) is exclusive, in the sense that no others are considered appropriate.
The specific interests listed in Article 10(2) can be broken down as follows:
national security and territorial integrity;
public safety and the prevention of disorder or crime;
the protection of health;
the protection of morals;
the protection of the reputation or rights of others;
preventing the disclosure of information received in confidence; and
maintaining the authority and impartiality of the judiciary.
It may be noted that this is an extremely broad list of interests; the rights of others, for example, covers a vast range of potential interests. Furthermore, the Court has tended to interpret the scope of these interests broadly. For example, in Engel and others v. the Netherlands, 1976, the Court held that the concept of “public order” covered a range of situations:
Necessary in a Democratic Society
In practice, the vast majority of cases decided by the European Court are decided on the basis of the third part of the test for restrictions, namely through a consideration of whether, taking into account all of the circumstances, the restriction is necessary in a democratic society.
The doctrine serves a number of purposes, including to recognise that, at least in relation to certain legitimate aims under Article 10(2), most notably morals, European States have different underlying values which justify differential treatment. The doctrine also takes into account the very different legal systems in European countries, as well as the different approaches to addressing issues that may be taken even in States with the same legal system.
A key rationale for the margin of appreciation is that, at least in cases which do not involve political speech, national authorities are better placed to decide on what constitutes an appropriate response to speech deemed to be harmful:
In such cases, the national authorities are in principle, by reason of their direct and continuous contact with the vital forces of their countries, in a better position than the international judge to give an opinion on the “necessity” of a “restriction” or “penalty” intended to fulfil the legitimate aims pursued thereby. [references omitted]120
Rights of Others: Hate Speech
In a number of cases involving sanctions for racist speech, the European Court has declined to find a breach of the right to freedom of expression. As noted above, one line of reasoning in such cases is that the speech in question is not protected under Article 10 because it falls within the scope of Article 17, regarding acts aimed at the destruction of the rights protected by the Convention.
Rights of Others: Religion
Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.
At the same time:
[T]he manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them ... The respect for the religious feelings of believers as guaranteed in Article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration.
In upholding what it recognised was a very serious limitation on freedom of expression, the Court also referred to the wide margin of appreciation to be accorded to local decision-makers in such cases.
