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*Law of Aliens

Published on July 3rd, 2018 | by Georgia Kleanthi

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SUMMARY: European Court of Human Rights Application no. 44306/98 of May 6th 2003 APPLEBY AND OTHERS v. THE UNITED KINGDOM

Keywords: Freedom of expression, Freedom to impart information, Freedom of assembly and association, Freedom of peaceful assembly, Right to an effective remedy

Court: European Court of Human Rights

Claimant: Appleby and others

Legal Framework:

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.

ARTICLE 11 (Freedom of assembly and association)

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 13 (Right to an effective remedy)

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Case Facts:

The applicants were members of a local environmental group who complained that they were denied the right to meet and to spread information to the public. The place to which they sought access was within an area owned by a private company. A number of public services are accommodated within this area, in premises that belong to the relevant public body. The applicants said that they had no effective remedies against decisions made by the private company, and although they were able to resort to other means for its campaign to the old town centre, they were unable to collect the signatures they needed because the old town centre was visited by far fewer people than the new shopping mall, which had effectively taken over the function of ‘town centre’.

Claims:

The claimants stated that there was interference with their rights to free speech and expression, saying a public authority had transferred the land to the private company. They also argued that the Government have a general obligation to seek a balance between the rights of property owners and the protection of individuals’ rights of freedom of expression and assembly and that the U.K had failed in this duty by granting the property owners absolute discretion as to who should have access to their land. They suggested that the U.K.could remedy the situation by introducing legislation based on ‘quasi-public’ land. The Government on the other hand argued that it was not for the Court to describe the content of domestic law. The Government also stated that there was no infringement of the Convention because the ban of the enviromental group did not have ‘the effect of preventing any effective exercise of freedom of expression or  the essence of the right’, because they could carry out their activities elsewhere.

Decision:

The Court used as a reference Article 10, which grands freedom of expression, but stated that Article 11 (right to freedom of assembly) could also be of relevance in this case. The Court also refereed to relevant general principles established in its case law and in particular it said that; “Genuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals”.In the end regarding the applicants claims of violation of Article 10 and 11 the Court was not persuaded by the argument that campaigning in the town center owned by the private company was the easiest and most effective way to reach people. It considered that the refusal of permission to campaign in this center had not effectively prevented the Applicants from communicating their views because they had the opportunity to campaign on the public access paths into the area, or resort to alternative means.

Regarding the claim of violation of Article 13, the Court found that the applicants indeed didn’t have an effective remedy in domestic law because English case-law indicated that the owner of a shopping center could give a bad reason or no reason at all for the exclusion of individuals from its land and no judicial review lies against a decision of a private entity.

The full text of the decision here





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