Rights under the European Convention (even religious ones) may not be invoked abusively

You cannot attempt to use the provisions of the ECHR in a way that abuses the rights of others. The European Court of Human Rights has reminded us of this basic fact in its judgment in Hizb Ut-Tahrir & Ors v Germany 27306/07 [2012] ECHR 1045 (12 June 2012).

Hizb Ut-Tahrir, whose name means “Liberation Party”, describes itself as a “global Islamic political party and/or religious society” and advocates the overthrow of governments throughout the Muslim world and their replacement by an Islamic State in the form of a recreated Caliphate. In January 2003 the German Federal Ministry of the Interior proscribed its activities on the grounds that it called for the destruction of the State of Israel and for the killing of Jews. The Ministry also concluded that Hizb Ut-Tahrir was not a political party (because it did not intend to stand for elections in Germany), nor was it to be regarded as a religious or philosophical community because it pursued political rather than religious objectives.

Hizb Ut-Tahrir took the matter to the Federal Administrative Court, claiming that because all its activities had a religious foundation it therefore enjoyed the protection of the freedom of religion provisions of the German Basic Law. The Federal Administrative Court disagreed. Articles in the organisation’s magazine Explizit contained denials of Israel’s right to exist and called for the violent elimination of the State of Israel or for people to be killed; and the Court decided that the refusal to register Hizb Ut-Tahrir had to be regarded as proportionate even if it interfered with that organisation’s religious freedom. Aside from that, Hizb Ut-Tahrir was not in any case qualified to file a complaint because it did not have a registered address in Germany and could not, therefore, claim a violation of its “constitutional rights”.

When the matter got to the European Court of Human Rights the applicants complained both about the ban and about the unfairness of the subsequent court proceedings, relying on a raft of Articles of which the most important were the provisions on fair trial, religion and freedom of association.

The Court referred to its case-law under Article 17 (prohibition of abuse of rights). The purpose of Article 17 was to make it impossible for groups or individuals to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention. Hizb Ut-Tahrir had attempted to deflect its rights under Article 11 from their real purpose towards ends that were clearly contrary to the values of the Convention: notably the peaceful settlement of international conflicts and the sanctity of human life. By a majority, therefore, the Court declared the application inadmissible.

Leave a Reply

Your email address will not be published.