Analysis of ECHR Violations and Article 2 Application: Xera Case

This report provides an analysis of a case involving the European Convention on Human Rights (ECHR), focusing on violations of Articles 9 and 10, which pertain to freedom of thought, conscience, religion, and expression. The case involves a small Christian community, the Santi, in the Republic of Xera, and the persecution faced by a member of the community, Tal, who was prosecuted under the Suppression of Extremism Act for publishing a book critical of the government. The report examines the legal arguments, including the application of the Handyside v. United Kingdom case, and discusses the implications of the actions taken against Tal, including the fine, court restrictions on his wife, and his deportation. Furthermore, the report explores the potential application of Article 2 of the ECHR, which concerns the right to life, in relation to the death of the Santi community's leader. The report also references the Kokkinakis case to highlight the importance of religious freedom and proselytism. The report concludes by discussing the conditions under which the use of force is justified, and the legal implications of the actions taken by the Xera government.

EUROPEAN CONVENTION
ON
HUMAN RIGHTS

Table of Contents
INTRODUCTION...........................................................................................................................1
QUESTION .....................................................................................................................................1
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................7

INTRODUCTION
The European Convention on Human Rights is an international convention to protect
human rights and political freedom in Europe. The convention was drafted in 1950 and entered
into force on 3/9/1953. Report will give advice to Tal and Zara of any violations. Furthermore, it
will explain possibility to use Article 2 of the ECHR in the same case.
QUESTION
Case - The article state the importance of Article 9 and Article 10 stating freedom of thought,
conscience and religion and the freedom of expression for those deserving justice at the right
time.1
In the republic of Xera their reside Santi, a small Christian community of approximately
7000 worshipers amongst total polulation of 150000, majority Xera Orthodox faith. In 2002 Xera
officiated European Convention on human rights. Santi lived a peaceful life for a long time and
never came across any persecution. Later in 2015 a new president was elected and her slogan
was 'Xera' for 'Xerians', on election she committed to stop Christian countries immigration and to
punish those not in their favour. In 2016 after the Xera parliament passes the Suppression of
Extremism Act. The act gave little importance to the holy book and it's teachings and was
offensive to publish article encouraging religious beliefs to insult Republic of Xera.
In 2018 a Santi community practising member and a publisher is prosecuted under the
Suppression of Extremism Act 2016 for publishing A History of the Santi in Xera. The execution
of the book is faced due to several controvercial sayings - The santi are often leading
intellectuals, The Xera Orthodox faith has few adherents and is of little consequence, then in
1997 the leader of Santi community Karen was murdered by Xera police and was never properly
justified despite the finding of the body remains in 2002. On the basis of these passages he is
convicted and was fined 4000 Euros. Xera high court dismissed his appeal endorsing the view of
expert witness without their own assessment of the necessity for restriction. At the time of his
appeal his wife was restricted admission in courtroom for wearing a crucifix addressing that open
manifestation of religions belief are threat to proper conduct of legal proceedings are not
1
Altwicker, T., 2017. Convention Rights as Minimum Constitutional Guarantees? The
Conflict between Domestic Constitutional Law and the European Convention on Human
Rights. Constitutional Crisis in the European Constitutional Area: Theory, Law and
Politics in Hungary and Romania (Oxford: Hart 2014). pp.331-350.
1

permitted any more as the new law of court, thus she failed to justify her point. Following that
Tal is deported to his birth place where Christian worship is restricted.2
Article 9 & 10 of ECHR of violations
As the article 9 in ECHR state -
Freedom of thoughts, conscience and religion -
This article states that everyone has the right to respect his private and family life as well
as his home and correspondences, no individual has the authority to interfere these personal
matters except for when it involves matters related to law, matter related to public security,
economic stability of the country, no individual can control ones belief, worship pattern, practice
and observance. As in the case Zara's - Tal's wife rights have been violated as everyone is
entitled to freedom of speech and expression according to Article 19 and they were to face
several harassing consequences (Altwicker, 2017).
As the article 10 in ECHR state -
Everyone has the right to freedom of Expression. The right involves freedom to received
information and the right to hold information without the interference of public authority. These
freedom comes with a sense of formalities, conditions, restrictions/penalties, as are associated by
law for democratic society, in interest of national security, territorial integrity and public safety
for maintaining the authority and implication of the judiciary for prevention of disorder of crime,
for prevention of disorder of crime, for protection of health and moral, to protect reputation of
rights for others, to prevent disclosure of confidential information and for maintaining the
authority and implication of judiciary. Article 10 states that everybody in the nation has complete
right to express their feelings, but they have to take care of some norms of society as well. Each
person can hold their own opinion. Law highlights that each person can receive any idea from
any source without any restriction, no one can interference in holding particular opinion about
anything (Bruno, 2017). 3
Handyside Vs United Kingdom (5493/72) is the great case law that shows applicability
of freedom of expression. This case shows that no one can disturb anyone from getting any idea
or opinion. He published a book name The Little Red Schoolboo in which 26page is describing
2 Bruno, G. C., 2017. Article 10 [Right to Life]. In The United Nations Convention on the
Rights of Persons with Disabilities(pp. 243-251). Springer, Cham.
3 Cram, I., 2017. Automatic Reporting Restrictions in Criminal Proceedings and Article 10
of the ECHR. In Media Freedom and Contempt of Court (pp. 81-92). Routledge.
2

sex in-depth. But this book was highlighted by press and more than 139 copies were ceased by
publications. When this case came in court then judges have found that there is no violation of
Article 10,it was cleared that interferences for publishing that book was illegal activity and it was
wrongful act (Decker and et.al., 2015).4
Hence in the case of Tal, he was fined for 4000Euros,As no one can stop someone from
thinking about something, it is there own perception hence if someone is try to create necessary
disturbance then court may take legal action against the person.
But in European convention Tal a publisher and practicing member in Sufi community is
prosecuted in under the Suspension of Extremism Act for publishing a book A History of Santi
in Xera. The prosecution was followed due to certain passages on the book that are as follows -
 The Santi are often leading intellectuals.
 The Xera Orthodox faith has few adherents and is of little consequence.
 In 1997 the leader of Santi community Karen was murdered by the police. Despite the
recovery of remains in 2002 the investigation was not properly done.
A fine of 4000 Euros was charged on him after he was declared guilty and based on two expert
witnesses his appeal was dismissed. Furtherly his wife was restricted to enter the courtroom for
wearing a crucifix, she was addressed that the court has established a new policy not to entertain
open manifestation of religious beliefs as they are threat to legal proceedings. After the dismissal
of court Tal is informed to deport his birth country Valon where Christian worship is not
tolerated (Cram, 2017).5
As the case followed Article 2 "Right to life" states that everyone's right to life shall be
protected by the law. No shall be punished of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which this penalty is provided by the
law. The three passages let to 4000 Euros fine endorsing the views of two expert witnesses
without their own assessment of the necessity of the restriction.
Just an illustration to understand the case -
Proselytism crime according to Greek Law state ''particular direct or indirect attempt to
push religious belief to a person against factors such as low trust,need, low interaction, fraud
4 Decker, M. R. and et.al., 2015. Human rights violations against sex workers: burden and
effect on HIV. The Lancet. 385(9963). pp.186-199.
5 Dijkstra, S., 2017. The Freedom of the Judge to Express his Personal Opinions and
Convictions under the ECHR. Revista Forumul Judecatorilor. p.128.
3

mental or taking any false advantage. Greek court states purely spiritual teaching does not lead to
proselytism, leading to performance of their prayers in free will.6
A Jehovah witness couple Mrs. and Mr. Minos Kokkinakis engaged in discussion with
Mrs. Kyriakaki at her house that weather Olof Palme was a pacifist or not and many more
subject she doesn't clearly remember. Which was a monologue rather than a discussion, if Mrs.
Kyriakaki would have ignored the debate if knew they were Jehovah's Witnesses. She was told
things that are religious in nature unknowingly and can't figure out the purpose of their visit.
They were trying to push her religious belief which did not happen. Mrs. Kyriakaki's husband
was cantor at local orthodox chruch informed the police and Mr. Kokkinakis was convicted for
proselytism (Peters, 2017).
Mr. Kokkinakis appealed to ECHIR under articles 7,9,10 and 14 of ECHR. The court
commision agreed the violation of Kokkinakis rights under Article 9.
Advice on possibility of uses of Article 2 of ECHR
As per the article 2, The right of life of European Convention on Human Right or the
obligation of the state to respect the right of human it protects the right of a human for the life.
This is the article in which the life is justified which is deprived. The European Court have also
ranked it as one of the most conventional fundamental provision (Peters, 2017).
The article is very strong for the citizen and indicates the following in it:
 The life of everyone should be protected by the law. Not single individual shall deprive
upon his life which is intentionally, Convention which is of crime under which the law
provide penalty.
 Deprivation which is of life will not be concluded contravening of the article 2, which is
no greater than absolute necessity which is dependence of the person from violence
which is unlawful, which causing any riot in-between the communities, and preventing
any person which is detained lawfully (Dijkstra, 2017).7
As per the case in which the Article 2 of ECHR which involving the death of Karen, the
article 2 can be used in order to hold the death sentence and further investigation can be made.
This article indicates that what is the reason the public bodies are given or taken the life, this
6 Eeckhout, P., 2015. Opinion 2/13 on EU accession to the ECHR and judicial dialogue:
Autonomy or autarky. Fordham Int'l LJ. 38. pp.955.
7 Krenn, C., 2015. Autonomy and effectiveness as common concerns: a path to ECHR
accession after Opinion 2/13. German Law Journal. 16(1). pp.147-167.
4

means they are free to life within the legal boundaries in which they are independent and which
involves the members of the family as a victim. As per the duty of command a positive duty is to
stop someone from the unlawful killing. 8This involves generally the policemen are highly
trained and are overseen all the time and this does not mean they can kill anyone without any
valid and strong reason. The article 2 mention that the bodies of public can not be neglected.
There are certain circumstances in which the bodies of human can be protected from the sentence
of death because the rule under this article is for protecting the citizens (Łazowski and Wessel,
2015). The rule says appropriate action in order to save the life of the citizen must be taken
which is within the jurisdiction. The article also says that the investigation done for the case must
be effective and prompt. When, there is a death the investigation is very strong. The proof which
is also known as the burden of proof is pretty critical in the case of the death circumstances
(Krenn, 2015).
The use of the force which have some exception, As per this rule a person which is
convicted to death is refrained from any such activity involving the deprivation of life. There are
certain restriction according to the rule, This involves the use of force when it is necessary in the
condition which involves the defence of the person form any unlawful violence, escaping the
person which is unlawfully detained, riot creating activities, or harming any community in which
the person is living (Russell, 2016). There are three conditions which is set by the court and are
as follows, When the use of force become necessary which is not in this case of Zara. The
dependence must be on party which is third, and the proper investigation which is totally
independent and totally impartial. As per the case of accused, who is the publisher of the
community of Santi, which a small community in the region which is living in the Republic of
The Xera. As per the Suppression of the Extremism Act, 2006, the defender was prosecuted
because in the book he mentioned the sensitive issues which effect the community, and he
mentioned the point which he thought was true which is his right to express.9 The accused is
already fined 4000 Euros. As per the new law which includes the strict manifestation of the
beliefs which are related to the religion or any community of the religion any legal proceedings
which is demanded by the Zara are not taken into consideration by the court. Defender as a result
8 Łazowski, A. and Wessel, R. A., 2015. When caveats turn into locks: Opinion 2/13 on
accession of the European Union to the ECHR. German law journal. 16(1). pp.179-212.
9 Peters, B., 2017. Unpacking the Diversity of Procedural Environmental Rights: The
European Convention on Human Rights and the Aarhus Convention. Journal of
Environmental Law. 30(1). pp.1-27.
5

was deported back to his nation on the basis of expressing the truth which is he felt is genuine.
The accused can use the article 2 to refrain himself to get deported him to the nation of him. By
using right to life. But appropriate investigation must be done it must be compared with the
intention of accused, But to defend Tal, the accused must mention the valid point which indicate
that the intention was just to publish the truth and not to harm or defame any community special
(Eeckhout, 2015).
So finally the advice to Tal and Zara is they should fully use the article 2, in which he is
allowed for the deep investigation which caused the death of Karen, the Saint leader. As per the
article the defender is having the right to go to the court and also his wife can enter the court and
it is allowed as per the article's special rule. As per the article the police if found guilty or
accused is strictly considered for the action which may involve imprisonment of him and also
taking back by the government the policemen's membership. The article says that the death of
any misleader will take place only when it is creating any serious thing which is affected by the
leader, the serious thing can be causing riot, the meaning of which is a group of people doing any
damage to the property or any person and any deaths caused by the leader etc. which is not in
this case10. There was no such situation where the force was used to handle any riot, in which the
police is allowed to take actions which first include the managing the conflict if any then
arresting the offenders and then if the situation become very dangerous then reacting as per the
situation (Cram, 2017). As the leader have not created any riots or any death in spite he suffered
the death which is completely objectionable. Here the duty of command is absolutely applicable
in which the one doing any unlawful killing is strictly punished and it is for saving the lives of
the innocent individual. The article 2 also focuses on solving the problem of the Europian society
and specially the minorities of the society which is Santi in the present situation (Decker and
et.al., 2015). The problem can be solved by having a look about the situation where when the
government changed, and before the government change the Santi community was living in
peace but afterwards the situation become worse or against of the small community, the slogan
of the government was “Xera for Xerians”. Problem can be solved by taking appropriate aid
from the government, and also appropriate health care of the family members of the Karen,
10 Russell, H., 2016. Striving for Never Again: A European Convention for the Protection of
All Persons from Enforced Disappearance and the Veiled Protection of Article 2 of the
ECHR. Inter-Am. & Eur. Hum. Rts. J. 9. pp.470.
6

Appropriate compensation must also be provided by the government to the family members of
the Karen.
CONCLUSION
As per the study it is concluded that one should fully take advantage of the relevant laws
if the one is eligible for it. Here in the situation article 9 and article 10 is used for the human
rights for the issues faced by the small community of Christianity “Sainti” after the election of
the president in 2015. Article 9 which is for the freedom of thought and article 10 of the
European Law for the convention Right, which deals in freedom of the expression all these
articles are discussed in detail in the about topic. Here in the study also the article 2 is mentioned
which is for the de barding of the Tar and also for the death of Kazen. What is right and what is
wrong is discussed here which is as per the article 2.
7

REFERENCES
Books and Journals
Altwicker, T., 2017. Convention Rights as Minimum Constitutional Guarantees? The Conflict
between Domestic Constitutional Law and the European Convention on Human
Rights. Constitutional Crisis in the European Constitutional Area: Theory, Law and
Politics in Hungary and Romania (Oxford: Hart 2014). pp.331-350.
Bruno, G. C., 2017. Article 10 [Right to Life]. In The United Nations Convention on the Rights
of Persons with Disabilities(pp. 243-251). Springer, Cham.
Cram, I., 2017. Automatic Reporting Restrictions in Criminal Proceedings and Article 10 of the
ECHR. In Media Freedom and Contempt of Court (pp. 81-92). Routledge.
Decker, M. R. and et.al., 2015. Human rights violations against sex workers: burden and effect
on HIV. The Lancet. 385(9963). pp.186-199.
Dijkstra, S., 2017. The Freedom of the Judge to Express his Personal Opinions and Convictions
under the ECHR. Revista Forumul Judecatorilor. p.128.
Eeckhout, P., 2015. Opinion 2/13 on EU accession to the ECHR and judicial dialogue:
Autonomy or autarky. Fordham Int'l LJ. 38. pp.955.
Krenn, C., 2015. Autonomy and effectiveness as common concerns: a path to ECHR accession
after Opinion 2/13. German Law Journal. 16(1). pp.147-167.
Łazowski, A. and Wessel, R. A., 2015. When caveats turn into locks: Opinion 2/13 on accession
of the European Union to the ECHR. German law journal. 16(1). pp.179-212.
Peters, B., 2017. Unpacking the Diversity of Procedural Environmental Rights: The European
Convention on Human Rights and the Aarhus Convention. Journal of Environmental
Law. 30(1). pp.1-27.
Russell, H., 2016. Striving for Never Again: A European Convention for the Protection of All
Persons from Enforced Disappearance and the Veiled Protection of Article 2 of the
ECHR. Inter-Am. & Eur. Hum. Rts. J. 9. pp.470.
8