The Case of Sheikh Ali Salman [Bahrain]
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Closed Mixed Outcome
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Members of a far right party held a demonstration against Friday prayer sounds being broadcast from a mosque through loudspeakers. Muslim worshippers were insulted and attacked. Karaahmed, a Muslim, was nearby when this incident took place and argued that he suffered psychological harm as a result of the demonstration. The European Court of Human Rights [ECtHR] found a violation of Article 9 (freedom of thought, conscience and religion) because the Bulgarian authorities failed to balance the right to peaceful assembly with the right to worship, and responded inadequately to a protest. The Court declared additional complaints concerning Article 3 (prohibition of torture) inadmissible because the party’s members’ actions were not severe enough to cause the kind of fear, anguish or feelings of inferiority necessary for an Article 3 violation.
Ataka is a Bulgarian political party that in 2006 began a campaign against the sound of Friday prayers emanating from the Banya Bashi Mosque’s loudspeakers, located in the capital, Sofia. In April 2011, Ataka’s members and supporters attached loudspeakers on a car and circled around the mosque during a Friday prayer, while playing Christian chants and church bells. In May 2011, about 150 Ataka’s members held a demonstration against the “howling” emanating from the mosque. The demonstrators positioned themselves in-front of the mosque. Many of them wore shirts with slogans “Erdogan, you owe us 10 billion” and “Ataka says: No to Turkey in the EU.” Others carried flags inscribed with “Let’s get Bulgaria back.” Some shouted “Filthy terrorists!”, “Off to Ankara!”, “Do not soil our land!”, and “Your feet stink! That is why you wash them!” The demonstrators also threw eggs and stones at the worshipers.
When the prayer started, a demonstrator climbed onto a roof of the mosque’s extension and played two loudspeakers to suppress the sound of the prayer. Several worshipers climbed onto the roof to stop the demonstrator. Other demonstrators responded and a fight ensued.
Karaahmed was at the park near the mosque during these events. He was not physically assaulted.
The police were present during the event. The demonstration was lawfully planned and the police were notified of it. However, the demonstrators positioned themselves in an unrequested and unapproved area. During the incident, the police climbed onto the rooftop to break-up the fight that ensued and also kept a protective line around the worshipers. The incident ended when the protesters dispersed.
Following the incident, the police launched an investigation and charged seven people with aggravated hooliganism. There is no information whether any of the seven persons charged have been convicted.
The National Investigation Service launched a separate investigation to establish whether there has been a violation of the prohibition on hate speech motivated by religion. Karaahmed requested to join the investigation as a victim. He was interviewed and it was established that he was not directly affected by the events. He appealed the decision, and was re-interviewed. The second interview resulted in the same verdict. Karaahmed appealed once again and requested a different investigator to be assigned to him, alleging that the one who interviewed him was religiously biased. His appeal was rejected. However, the National Investigation Service’s investigation was still ongoing during the time of the case’s adjudication.
Karaahmed complained that “the events at the Banya Bashi mosque and the domestic authorities’ response to those events amounted to violations of Articles 3 and Article 9 of the Convention, in each case either taken alone or taken in conjunction with Article 14. He has further complained that the same events amounted to a violation of Article 8 also either taken alone or taken in conjunction with Article 14.” [para 59]
Article 3 – prohibition on degrading treatment
The Court reiterated that for a violation to occur under Article 3, ill-treatment must attain a minimum level of severity, which is relative and depends on all the circumstances of the case. Furthermore, treatment is considered to be “degrading” when it “humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance. The public nature of the treatment may be a relevant or an aggravating factor.” [para. 72]
Here, the Court stressed Karaahmed was not physically harmed by the demonstrators. However, the purpose of the demonstration, particularly in light of his vulnerability as someone with poor eyesight, caused him psychological harm.
The Court agreed that “intentions of the demonstrators went beyond simply protesting at the volume of the loudspeakers and that their intentions were to mock publicly and debase the worshipers and their religion.” [para. 75] Nonetheless, the Court opined that “as premeditated and public as those actions were, and however much they succeeded in disrupting the prayers of the applicant and his fellow worshippers, they were not so severe as to cause the kind of fear, anguish or feelings of inferiority that are necessary for Article 3.” [para 75]
In assessing the parties’ submissions, the court looked at the balancing of two sets of fundamental competing rights. On one hand, the right of the applicant, as well as the worshipers, to freedom of religion as enacted by Article 9 of the ECHR and on the other hand, the right to freedom of expression and peaceful assembly exercised by the respondents, enacted by Articles 10 and 11 of the Convention. Respecting the fact that their task in ensuring such balance of rights is to verify whether the authorities had struck a fair balance between the two (decided in Couderc and Hachette Filipacchi Associés v. France), the Court did not act with the benefit of hindsight but considered the feasibility of striking a balance of the aforementioned rights, while acknowledging the difficulties of policing modern societies, without imposing impossible or disproportionate burdens on them (see K.U v Finland, Austin and Others v UK and Frasila and Ciocirlan v Romania).
Having considered the time available for the authorities to act prior to the events on May 20, 2011, and the evidence provided by the video, the Court fount that steps could have been taken to ensure that both parties’ rights were safeguarded. It is implicit from this failure to take any steps prior to the start of the demonstration that the domestic authorities neglected to give any consideration as to how the competing rights of the demonstrators and worshipers could be fairly balanced to ensure that both were equally respected. [p. 23] Even while the worshipers were pelted with eggs and screamed at, they attempted to continue their prayers, thus proving that they had gathered there for their weekly prayer and not to engage in a fight with the demonstrators. In this regard, it must have become clear to the police that doing nothing would have allowed the demonstrators to exercise their rights in a matter which was entirely oppressive of the rights of the worshipers.
The Court also considered that had the police kept the demonstrators to their designated area, it would have allowed the demonstrators to have their demonstration as well as would have allowed the worshipers to continue their prayers with minimal disruption and, most importantly, it would have minimized any risk of violence between the two groups. While the demonstrators enjoyed a virtually unfettered right to protest at the mosque that day, the applicant and the other worshipers had their prayers entirely disrupted. The police investigation following the events engaged with relevant offenses of Criminal law directed only at the physical acts of violence. The investigation of the National Investigation Service was meant to focus on the interference with religious rights of the applicant and his fellow worshipers. Despite numerous witnesses being interviewed, this investigation has still not been completed nearly four years after the events.
Considering all the above, the Court found that the failure by the domestic authorities to strike a proper balance in the steps they took to ensure the effective and peaceful exercise rights of the demonstrators and the rights of the applicant and the other worshipers to pray together, as well as their subsequent failure properly to respond to those events, meant that there had been a failure of the State to comply with its positive obligations under Article 9.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case offers a mixed outcome regarding the freedoms it protects. While it holds accountable public authorities who fail to act in due diligence, the examination under Article 9 solely does not entirely capture the core of the case: the racial and religious motives underlying the disruption of religious worship and abuse against the Muslim worshippers as demonstrated in the recorded video.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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