TrustHLT/LaCour huggingface dataset:
GR1 (Government): But there was nothing disproportionate as a matter of policy about it adopting a policy which gave full reign to the promotion of non-discrimination on grounds of same-sex orientation.
GR1 (Government): I'm sorry to have gone over the time.
GR1 (Government): Those are my submissions.
Lech Garlicki (JudgeP): Thank you very much. I call Mr. Dingemans.
AP2 (Applicant): The first question I was asked to address was from Judge Bratzer.
AP2 (Applicant): And how should the court approach and deal with the positive obligations, if there are any, in Article 9, having regards to the Jakobsky case?
AP2 (Applicant): I entirely accept the Jakobsky case was a case that involved state authorities.
AP2 (Applicant): But the reasoning of the court was not limited to the fact that it involved a state authority.
AP2 (Applicant): If one looks carefully through it, one can see the language of a positive obligation.
AP2 (Applicant): That is consistent with the court's own jurisprudence in Otto Preminger.
AP2 (Applicant): And it would be wrong not to find a positive obligation in Article 9 when there is a positive obligation in, for example, Article 8.
AP2 (Applicant): Otherwise, you will lead to a system where the courts impermissibly rank rights.
AP2 (Applicant): And you get to all the problems that have been caused by these cases, because people stop treating religious rights seriously.
AP2 (Applicant): The second question I was asked was about what Ms. Oueda had done by way of dress.
AP2 (Applicant): Can I just read very briefly paragraphs 9.5 and 9.6
AP2 (Applicant): of the Employment Tribunal's judgment?
AP2 (Applicant): Just commend them to you.
AP2 (Applicant): What happened was, well, in fact, because of time, I'll have to paraphrase.
AP2 (Applicant): In 2004, the uniform changed.
AP2 (Applicant): Before, she had worn a blouse and therefore covered her neck.
AP2 (Applicant): And therefore, the cross wasn't visible.
AP2 (Applicant): After 2004, a new uniform was rolled out.
AP2 (Applicant): And it was called the McDonald uniform.
AP2 (Applicant): And you could wear either the cravat done up to the neck or with a toggle outside the neck.
AP2 (Applicant): Ms. Oueda started wearing the toggle outside the neck,
AP2 (Applicant): showing her cross.
AP2 (Applicant): And that is where the problems started.
AP2 (Applicant): And the first formal memo where the problem is documented is the 20th of May, 2006.
AP2 (Applicant): And I think that has been submitted to the court.
AP2 (Applicant): Also, 9.12.2 of the judgment deals
AP2 (Applicant): with the mandatory religious items.
AP2 (Applicant): It said, an employee who wished to wear a religious item visibly outside the uniform was permitted to do so if the item was mandatory and could not be concealed.
AP2 (Applicant): Obvious examples were any form of headgear, such as the hijab, the turban, or the skullcap.
AP2 (Applicant): So it's all set out there in the relevant findings.
AP2 (Applicant): The next question I was asked was from Judge Borgvitsen in relation to the reason for the change of the BA policy.
AP2 (Applicant): This is paragraph 3.3 of the Employment Tribunal's judgment.
AP2 (Applicant): A storm of media attention, much of it hostile to the respondent, which was British Airways, led the respondent to reconsider its uniform policy and to introduce an amended policy on the 1st of February, 2007.
AP2 (Applicant): And I think we have also submitted the internal petition that was raised in support of Missy Weeder's position, many from other faith groups.
AP2 (Applicant): In relation to Judge de Gaetano's question, my friend, Miss Rose, is going to deal with that in some detail.
AP2 (Applicant): And can I deal with Judge Bucinich's question to me, which is, what is the effect of the change, and does it mean it was not proportionate?
AP2 (Applicant): And we do respectfully submit that it shows that there was never a legitimate aim proportionately pursued in this case that the courts could accept, because incorporated into UK domestic law are the European Convention rights.
AP2 (Applicant): And the Court of Appeal took the impermissibly narrow route.
AP2 (Applicant): This comes back to the answer to Judge Bratz's question to me about the obligations incorporated.
AP2 (Applicant): The Court of Appeal we respectfully submit had misdirected themselves in relation to those matters.
AP2 (Applicant): And finally, the president's question related again to the wearing of religious symbols and types.
AP2 (Applicant): And my instructions are that Miss Weeder is aware that many people now wear a cross, but she couldn't possibly give you any accurate estimation as to numbers.
AP2 (Applicant): Those are the answers to the questions, I hope.
Lech Garlicki (JudgeP): Ms Rose, please.
AP1 (Applicant): Can I deal first with the question that was asked by Judge D'Catano about provisions in national law in the United Kingdom for conscientious objection?
AP1 (Applicant): We addressed this in our original application to the court at paragraph 54, where we identified a number of places in the United Kingdom law where provision is made for conscientious objection.
AP1 (Applicant): These include the right of medical staff to conscientiously object to involvement in abortion, the right of any person to conscientiously object to participation in work involving treatment and development of human embryos outside the body, right of medical staff not to advise on or provide contraception, the exclusion of jurors from jury service on the grounds of conscientious objection, and other miscellaneous rights, including the right of Sikhs not to wear motorcycle crash helmets, which are obligatory for anyone else riding a motorcycle.
AP1 (Applicant): So those are some examples of where conscientious objection is provided for in United Kingdom law.
AP1 (Applicant): Indeed, our submission is that the Civil Partnerships Act itself, the legislation at issue in this case, permitted conscientious objection because it did not oblige the local authorities to designate all marriage registrars as civil partnership registrars, but simply required them to ensure that they had sufficient civil partnership registrars in their area for the service of civil partnership to be provided.
AP1 (Applicant): Secondly, a question asked by Judge Bratsa, is there an interference with Article 9 if the employee is free to seek employment elsewhere?
AP1 (Applicant): Whether or not that is the appropriate test where the allegation is of a breach of Article 9, and we would say it is not, we submit it most certainly cannot be the appropriate test where the complaint is of discrimination under Article 14, and the question is merely whether the treatment is within the ambit of Article 9.
AP1 (Applicant): That is because Article 14 prohibits any detrimental treatment on prohibited grounds which is not justified.
AP1 (Applicant): The nature of the detriment cannot be limited to total exclusion from all forms of employment.
AP1 (Applicant): It is obvious that an employee who loses their job has suffered a very serious detriment.
AP1 (Applicant): The logical implication, indeed, of the government's position is the rather startling one, that a state employer could have a policy of refusing to employ practicing Jews, and say that that was not a violation of Article 9 or Article 14 because other employers were prepared to employ them.
AP1 (Applicant): We also make the point, of course, that, and this has been raised by counsel for the other applicants in this case, that in the gays and the armed forces case, the issue under Article 8 plus 14 was not resolved by the fact that those individuals could have had other careers apart from careers in the armed forces.
AP1 (Applicant): And we do ask the Court to note the very close links between Articles 8 and 9, because a person's religious beliefs are an integral part of their personal identity, which Article 8 protects.
AP1 (Applicant): Judge Bratza also asked the question whether it made a difference that Ms Liddell was already in her post, and Mr Eadie remarkably responds that it makes no difference at all.
AP1 (Applicant): We submit that it does indeed make a very significant difference.
AP1 (Applicant): It makes a difference to the question of the extent to which the local authority was under an obligation to seek to accommodate her, and to the assessment of the proportionality of the treatment to which she was subjected, because the severity of the adverse consequences of that treatment are significantly greater for an employee who has been employed for a number of years and then finds that suddenly conditions change.
AP1 (Applicant): The fact that an employer is contractually entitled to change an employee's terms and conditions of employment has no bearing on the question whether that treatment by the employer constitutes unlawful discrimination.
AP1 (Applicant): Contrast the case of Sübbenhaar in Germany.
AP1 (Applicant): That case decided in February of last year was a case in which this Court rejected a complaint of a violation of Article 9 on the basis that the employee knew when they applied for the job that their religious practices were incompatible with the job.
AP1 (Applicant): That, we say, cuts both ways. This employee did not.
AP1 (Applicant): And the suggestion that she should, as a simple employee, have been expected to anticipate controversial and novel developments in the law that took place years after her employment is, with respect to Mr Eadie, a startling one.
AP1 (Applicant): Finally, we make the point that it is not disputed that the service to same-sex couples could have been provided in Islington without any detriment had Ms Liddell not been designated a civil partnerships registrar.
AP1 (Applicant): The United Kingdom's position is that Islington was entitled to sacrifice Ms Liddell in order to send a message about its commitment to equal opportunities.
AP1 (Applicant): There are two fundamental objections to that position.
AP1 (Applicant): The first is, of course, that it defeats a commitment to equal opportunities for the local authority to dismiss the employee who has a sincere religious conviction when it was unnecessary to do so.
AP1 (Applicant): What they have actually done is to show that they place no weight at all upon the right to equal treatment of Ms Liddell.
AP1 (Applicant): Secondly, and independently of that, the submission of the United Kingdom entails the permitting Islington to treat Ms Liddell as an instrument for the propagation of its public message.
AP1 (Applicant): And we submit that to treat a person, an individual, as a means and not an aim in themselves is fundamentally incompatible with individual human dignity and incompatible with Convention rights.
Lech Garlicki (JudgeP): Mr. Diamond, please.
AP3 (Applicant): If I may just commence by addressing the questions of Judge Bratzer.
AP3 (Applicant): The first question was addressed to, I pose to answers about Mr McFarland and his position.
AP3 (Applicant): His position was he did not particularly think or address the issue of what the nature of psychosexual therapy would involve. He planned to specialise in sexual therapy, ultimately
AP3 (Applicant): in private practice. His own views of his position on this were uncertain as we have
AP3 (Applicant): discussed. They had been previously resolved and he believed they would be previously resolved
AP3 (Applicant): again. If they were unable to be resolved, he hoped that civilised people would have
AP3 (Applicant): reached a sensible accommodation. There are a few points I just want to mention on this.
AP3 (Applicant): The first thing is that Mr McFarland has been banned now from a number of reputable therapeutical bodies because of what took place to him. He is unable to join a mainstream organisation
AP3 (Applicant): and this is having a far-reaching prohibition on his professional practice.
AP3 (Applicant): In the case of SID, Abros and Lithuania 2004, the Lithuanian government introduced a wide-ranging employment ban on former KGB officers. That was held to be disproportionate because of
AP3 (Applicant): its wide-reaching effects under Article 8, not Article 9. I will come on to that in a
AP3 (Applicant): minute, the same as my learned friend Mr Dinglemans has addressed. It affects his Article 8 rights
AP3 (Applicant): to have a career, have professional colleagues and provide for his family. These are similar
AP3 (Applicant): considerations of the widespread right. Not only do we have a religious bar to office,
AP3 (Applicant): but additionally to that we have a denial of choice of autonomous individuals who may have wished to see Mr McFarland. He may well have specialised in a particular type of therapy,
AP3 (Applicant): particularly those from a religious community, and they may have wished to have obtained his professional references. Finally, the question of referral, the question of therapists
AP3 (Applicant): saying, I am too busy to see this person, is very normal. Therapists refer all the time.
AP3 (Applicant): They are not experienced enough, they are not specialised in that field. They themselves
AP3 (Applicant): have an issue of abuse or alcoholism, which is a patient. They go on holiday, they move
AP3 (Applicant): home. Referral is normal and should be extended to religious grounds. On the issue of public
AP3 (Applicant): and private employment, I endorse the grounds again raised by my learned friend. We feel
AP3 (Applicant): that if additional grounds are given to the state, that will privilege public employees under the Convention over private employees. We say that is wrong in principle and will
AP3 (Applicant): result in a partition of Convention rights in a highly regulated field. There is significant
AP3 (Applicant): amount of legislation in the United Kingdom on employment law which tends to treat public and private employers similarly, and the United Kingdom has introduced legislation in this field in equality to prevent discrimination likewise on grounds of religion. Article 1
AP3 (Applicant): requires the state to secure the rights under the Convention to all persons. That will not
AP3 (Applicant): be achieved if a whole sector of the economy is excluded. If we take the case of Arts for
AP3 (Applicant): Then, Lieben, I digress perhaps, you have a right to demonstrate, but other groups can appear and prevent you demonstrating. The state is under a positive obligation to enable
AP3 (Applicant): you to demonstrate or manifest your religious practice. The Convention has been applied
AP3 (Applicant): in many circumstances to employment. We have Article 10 applies. There were sashes in Spain
AP3 (Applicant): where the Spanish trade union degraded their employer. They were dismissed, but Article
AP3 (Applicant): 10 implied. There have been other cases involving whistleblowers. The question is, we have cases
AP3 (Applicant): on Article 8, and I have mentioned Siberbos and Lithuania. We have also had Sus and Germany
AP3 (Applicant): where the court had to do an Article 8 analysis where a church dismissed an individual for having a second family. All these cases involved a Convention right in the employment nexus.
AP3 (Applicant): What is so special about a national authority saying, you have this right, we will do a proportionality analysis and judge where it is going? The only petitioning in my submission
AP3 (Applicant): that should exist in the labour market is not between public and private employees, but between ideological employees and normal employees. Mr McFarland's employer is an
AP3 (Applicant): employer. He has no ideology. Perhaps a church, as in Sus's and Germany's case. Perhaps
AP3 (Applicant): a political party, you have to be committed to socialist or conservative ideology. Perhaps
AP3 (Applicant): Friends of the Earth, you should be committed to Friends of the Earth ideology.
AP3 (Applicant): The final point is conscience clauses. My learned friend Mrs Rose has read the list.
AP3 (Applicant): We stand by that. But we just draw one point. The exemption clauses were quite widely
AP3 (Applicant): covered, a wide range of areas including Sikh helmets, jurors and medical staff. The court
AP3 (Applicant): in Batanian in Armenia founded the objection to military service on an Article 9 approach There is no reason to limit that case simply to military service. What is so special about
AP3 (Applicant): military service? Many people have deeply held conscientious views on very sensitive
AP3 (Applicant): issues and none is more sensitive than the field of religion. Thank you so much.
Lech Garlicki (JudgeP): Any other things to say?
Lech Garlicki (JudgeP): Yeah, Miss Eadie.
GR1 (Government): Just before this hearing closes, and it relates not at all to the facts or issues arising in this case, but word has reached us that this is Judge Broxer's last live UK hearing, however much his modesty may wish it, that cannot be allowed to pass without something being said on behalf of us all. I emphasise that this isn't simply me saying it, this is on behalf of all of
GR1 (Government): us. Judge Broxer has, as the court will well know, been at the forefront of human rights development
GR1 (Government): from its early backwater days to where it is now, at the heart of European decision making, infusing almost every decision taken by almost every public authority across Europe and beyond.
GR1 (Government): Before he became a Commissioner of Human Rights, Judge Broxer had appeared in over 100 cases before the court and the Commission. He then became the European Commissioner for the United Kingdom,
GR1 (Government): was then elected to the court when the court was set up, and now fittingly, just before his retirement, is its President. All of his work on this court, certainly from the perspective of
GR1 (Government): those who have appeared before it, has been done with intellectual rigour, with humanity, with a characteristic generosity of spirit, and the twinkle that over the years has forgiven at least my very worst points. It has also come to our attention that Judge Garlicky is to leave the
GR1 (Government): court as well, and everything that I've said in relation to Judge Broxer of course applies equally to Judge Garlicky. We wish you both very well in whatever you choose to do hereafter.
Lech Garlicki (JudgeP): Well, thank you very much for these nice words.
Lech Garlicki (JudgeP): Of course, it's always a pleasure when such words of proper recognition arrive from our native countries, and this was a very nice accent to terminate this hearing.
Lech Garlicki (JudgeP): Anyway, we now come to the end of this hearing.
Lech Garlicki (JudgeP): I thank the parties for their interventions and answers to the court's question.
Lech Garlicki (JudgeP): The court will now deliberate on both the admissibility and merits.
Lech Garlicki (JudgeP): The judgment or, as appropriate, decision will be delivered later.
Lech Garlicki (JudgeP): The parties will be informed of the date of delivery.
Lech Garlicki (JudgeP): I declare the hearing closed.
Dean Spielmann (JudgeP): I declare open the public hearing on the admissibility and merits in the cases of Maktouf against Bosnia and Herzegovina and Damjanović against Bosnia and Herzegovina.
Dean Spielmann (JudgeP): The cases were lodged with the court under Article 34 of the Convention on the 17th December 2007 and 20th June 2008, respectively, by an Iraqi citizen, Mr. Abduladhim Maktouf,
Dean Spielmann (JudgeP): and a citizen of Bosnia and Herzegovina, Mr. Goran Damjanović
Dean Spielmann (JudgeP): The applications were allocated to the fourth section of the court, which on the 10th of July 2012 decided to relinquish jurisdiction in favor of the Grand Chamber.
Dean Spielmann (JudgeP): The government, represented by their deputy agent, Ms. Zikreta Ibrahimovic, assisted
Dean Spielmann (JudgeP): by Ms. Sandra Malešić, assistant agent,
Dean Spielmann (JudgeP): and Mr. Hilmo Vučinić and Ms. Maja Kapetanović, advisors.
Dean Spielmann (JudgeP): The applicants are represented by Mr. Senad Kreho, Mr. Aldin Lejlić, Mr. Adil Lozo, Mr. Ismet Mehić,
Dean Spielmann (JudgeP): assisted by Mr. Adi Kreho, Mr. Harum Lozo,
Dean Spielmann (JudgeP): and Ms. Nina Kisić, advisors.
Dean Spielmann (JudgeP): I welcome also a delegation of judges from the Russian Federation, a delegation of judges and prosecutors from the European Judicial Training Network, and a delegation of judges from Japan.
Dean Spielmann (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Russian has been authorized for the benefit of the group of Russian judges who are on a study visit to the court.
Dean Spielmann (JudgeP): Ms. Ibrahimovic for the government will speak first,
Dean Spielmann (JudgeP): and then Mr. Lejlić for the applicants.
Dean Spielmann (JudgeP): I call Ms. Ibrahimovic.
GR1 (Government): Mr. President, Honorable Judges, the Respondent
GR1 (Government): shall present its oral response at this hearing before the Grand Chamber, which fully relies on its previous written submissions.
GR1 (Government): Both applicants were convinced by the court of B&H for having committed war crimes against civilians in 1992 and 1993, one as direct perpetrator and other as aider.
GR1 (Government): The applicants were tried under Article 173 of the new 2003 Criminal Code of Bosnia-Herzegovina.
GR1 (Government): The first applicant alleges a violation of Article 6, and both applicants allege violation of Article 7, Article 14, and Article 1 of Protocol Number 12.
GR1 (Government): With regard to alleged violation of Article 6, the first applicant particularly raised the question on the principle of appointment of international judges, the duration of their terms of office, the principle of independence, exposure to internal influence, and the very perception of judicial independence.
GR1 (Government): The Respondent supports the submissions by Amicus Curie as a response of delegation of the first applicant.
GR1 (Government): The submissions of third party highlights the period of the very beginning of comprehensive judicial reform in B&H, including the creation of preconditions for transfer of case from the ICTY and generally more severe prosecution of war crimes cases on national level on grounds of the ICT experience and standards.
GR1 (Government): The presence of international judges is thus a part of the UN Security Council resolutions calling on the high representative to create a war crimes chamber in the court of B&H as part of the ICTY completion strategy and calling on the donor community to provide support to that project.
GR1 (Government): Thus, an engagement of international judges and prosecutors was a tool of international assistance in addition to the establishment of the international registry.
GR1 (Government): The engagement of judges and prosecutors from the countries with long tradition of democracy and rule of law, the practice was to hire persons who were already appointed as judges or prosecutors in the countries of their origin.
GR1 (Government): Therefore, it is difficult to say that the third party decisions was a substantive act of appointment of judges as it concerned judges who had undergone the election process by independent bodies in the countries of their origin.
GR1 (Government): This could rather be considered as an introduction of the judges into the national system as a manner of rendering the necessary assistance to the national judiciary.
GR1 (Government): Two years terms of office, a temporary engagement of international judges, was introduced for practical reasons, such as planning the absence from the course in their home countries, securing the donor funds for their salaries, through the registry, et cetera.
GR1 (Government): Except of the sole act of the signature of the decisions of their appointment, the high representative did not have any controlling role or influence on their work which would influence their reappointment.
GR1 (Government): Therefore, these judges were considered independent and impartial in performing their functions, as confirmed by the constitutional court decision in Maktov case, which dismissed complaints on these grounds.