How we are applying this presently?

Prescribed by law

A restriction is lawful when it has a basis in domestic law , is accessible, precise and foreseeable in its application.

- the SMS Charter and the Content Integrity Act

- should be read in conjuction with Lydina Constitution

- (Delphi AS) may still satisfy the requirement of foreseeability even if the Applicants had to take appropriate legal advice

- (LAHTONEN v. FINLAND) to a greater or lesser extent vague: a need to avoid excessive rigidity and to keep pace with changing circumstances

Why do we establish the criterion of “conditional manner” when speaking about the Applicants intention?

Tristán Donoso v Panamá (IACtHR, 27 January 2009), para 125

-when applying the penalty it is significant to establish “the malice with which the damaging party acted-

What does the “conditional manner” mean within the Usón Ramírez case?

The Applicant was convicted for the interview in which he suggested that if the allegations considering the Armed forces activity were true, it would mean the state liability for Venezuela. It was about the incident that took lives of two soldiers and severely harmed another six.

How we are applying this presently?

According to para.9 of the Case Problem Kutik relies on scientific discoveries of old fossils of the area described in the Zofftor as strong evidence that plague from Zofftor had historically never took place in that region. If the Applicant was intended to seek the historic truth, he could condition his speech in the way of stating that “if that kind of sources would be of truthful content, the plague described in Zofftor had never took place”.

3-part test:

Article 19, ICCPR

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

ARTICLE 10, ECHR

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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

ARTICLE 9

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Article 18, ICCPR

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Date: 2016-01-05; view: 834