Understanding Article 10 and 11: Human Rights Explained

Article 10: Freedom of Expression

• Definition: The right to hold opinions and to receive and share information.
• The Golden Rule: It protects popular ideas, but also those that "offend, shock, or disturb" (Handyside case). Without this, democracy cannot exist.
• Limitations: Restrictions are only permitted if they meet three strict conditions:
  • It is prescribed by law.
  • It pursues a legitimate aim (e.g., national security, public health, or protecting reputations).
  • It is necessary and proportionate (not an overreaction).
• Journalists as Public Watchdogs: They receive the highest protection because they inform society.
  • Responsible Journalism: They must act in good faith and verify facts.
  • Protection of Sources: Forcing a journalist to reveal a source is illegal—except in life-or-death situations—to prevent a "chilling effect" on free speech.
• Public Figures: Politicians must accept much harsher criticism than private citizens because they have chosen to enter the public eye.
• Facts vs. Opinions (Lingens case):
  • Facts: Can be proven true or false; you must provide evidence for them.
  • Opinions (Value Judgments): Cannot be proven. Forcing someone to prove an opinion violates the right, though the opinion must have a factual basis.
• Expression (Art. 10) vs. Privacy (Art. 8): These rights are equal. Judges determine priority by assessing whether the information is of public interest or merely gossip (Von Hannover No. 2 case).

Article 11: Assembly and Association

• Definitions:
  • Assembly: Temporary gatherings, such as protests or marches.
  • Association: Permanent groups, such as political parties, unions, or NGOs.
• The Peaceful Requirement: Protection applies only to peaceful intent. If there is violence, weapons, or hate speech, the right is forfeited.
• Special Exceptions: The state may impose stricter limits or bans on the military, police, and certain civil servants.
• The State's Duty: The state has a positive obligation to deploy security to protect demonstrators, particularly those expressing unpopular views.
• Spontaneous Protests: Authorities cannot dissolve peaceful, sudden protests simply due to a lack of advance notice.
• Voluntary Membership: Under Article 11, joining an association must be 100% voluntary. Mandatory public bodies (e.g., official Bar or Medical Associations) do not qualify as associations under this article.
• Political Parties: As engines of democracy, they receive the highest protection. They may campaign to change the Constitution, provided they use democratic means and respect human rights.
• Trade Unions: They possess the right to collective bargaining and to be heard by employers.
  • Right to Strike: Protected as a vital tool for union activity.
  • No "Closed-Shops": Individuals have the right to join a union, but also the absolute right not to join.