Scottish Human Rights Law Group

Article 17 – restrictions on activities aimed at the destruction of Convention rights

Various civilian legal systems in Continental Europe have, in reliance upon Roman law, developed the concept of “abuse of rights”,  by which is meant a “black letter” reliance in bad faith on the rights granted by the legal system. And there is some evidence of the doctrine’s existence in Scots common law, which – in contrast to the law of England  – has received the Roman law doctrine termed in aemulationem vicini which is to the effect that an act, otherwise lawful in itself, may become illegal if done with a malicious intent of injuring a neighbour. The corollary of the idea of abuse of right may be said to be an obligation to exercise such rights as one has civiliter. 

The concept of “abuse of rights” has also been accepted in the jurisprudence of the European Court of Justice as existing in EU law  and express provision has been made in Article 54 of the EU Charter of Fundamental Rights. As Advocate General Tesauro noted:

“Any legal order which aspires to achieve a minimum level of completion must contain self-protection measures, so to speak, to ensure that the rights it confers are not exercised in a manner which is abusive, excessive or distorted.” 

And the concept of abuse of rights is expressly provided for in the European Convention on Human Rights (and incorporated into UK law by virtue of Schedule 1 to the Human Rights Act 1998).  Under the heading “Prohibition of abuse of rights” Article 17 ECHR states:

“Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to any greater extent than is provided for in the Convention”

Article 17 is an unusual Convention right because it can be used both by an individual against the State  and by the State against an individual.    There has, however, been relatively little case law from the European Court of Human Rights  on the conditions under which an individual might be found to be guilty of an abuse of rights.   This is, perhaps, unsurprising since the case law of the Strasbourg Court concerns only violations by State contracting parties of the rights protected under the Convention rather than any violation by individuals.   It is clear that the State is entitled to rely on Article 17 to safeguard itself against a threat of totalitarianism. The Commission has held that banning the German Communist Party was justified under reference to Article 17  and that individuals convicted for distributing racist pamphlets could be excluded from participating in an election on a racist platform.   And it has been observed in relation to the Strasbourg Court’s case law on the dissolution of Islamist parties by order of the Turkish State  that:

“It seems that there is now a European consensus that an Islamic party advocating the introduction of Shari’a law is incompatible with the European Convention on Human Rights and hence with the conception of European democracy.”

Although the State can invoke Article 17 against an individual, the fact that the individual aims to destroy or restrict the fundamental rights of others does not mean that he may be deprived of all Convention rights. Article 17 only applies to the rights which are abused for this aim. Thus, in Lawless v Ireland the Court decided that the State was not entitled to deprive the applicant of rights to liberty under Articles 5 and fair trial rights under Article 6, merely because he was accused of being a member of a terrorist organisation.   It is, however, clear from the very terms of Article 17 ECHR that an individual may not rely upon his Convention rights (even including those such as Articles 2 and 3 ECHR which are expressed in unqualified terms) in a manner which is destructive of – or disproportionately limits – the Convention rights of others. 

Thus in principle, one may see that where an individual acts in a manner in which he consciously and deliberately seeks to undermine or contravene the Convention rights of others, he cannot seek to rely upon the State’s obligation to respect his Convention right to justify or protect these actions which are aimed at the destruction or the effective crippling of others’ Convention rights. 

When this aspect of the responsibilities which are inherent within any claim for respect and protection by the institutions of civil society of individual’s fundamental rights is borne in mind then the more secure might respect for fundamental rights may be.  As Lord Steyn has noted in a Scottish devolution case before the Privy Council:

“[A] single minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European democracies.    The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights”.

Abuse of law on the Continent is also known as fraus legis in the Netherlands (see P.J. Wattel, “Fraus legis (wetsontduiking)” in  J. den Boer, R.J. Koopman and P.J. Wattel, Algemeen belastingrecht (Kluwer, Deventer, 1999.    It is a principle with its origins in Roman law as has been noted by E. van der Stok in “General anti-avoidance provisions: a Dutch treat” [1998] BTR 151:

“In fraudem legis agere concerns, according to the Roman lawyer Paulus, the act of someone qui salvis verbis legis sententiam ejus circumvenit (who without infringing the words of the law, deceives the purport thereof).”

 See, the survey of the case law of various Member States on the principle of abuse of rights which is contained in the opinion of Advocate General Maduro in Case C-255/02 Halifax plc v Customs and Excise Commissioner [2006] ECR I-1609. See too Dimitris Triantafyllou “Abuse of rights versus primacy?” (1999) 36 Common Market Law Review 157-164

 See Elspeth Reid. “Abuse of rights in Scots law” (1998) 2 Edinburgh Law Review 129-157

 See Michael Taggart Private property and abuse of rights in Victorian England: the story of Edward Pickles and the Bradford water supply (Oxford: Oxford Studies in Modern Legal History, 2002) a monograph which examines and places in historical context the decision of the House of Lords in Mayor of Bradford v. Pickles [1895] 2 AC 587which unequivocally established  the proposition that it is not unlawful in English law for a property owner to exercise his or her rights maliciously and to the detriment of others or the public interest on the basis that in English law the act and not the motive of the act determines its legality. 

See, for example, Campbell v. Muir 1908 SC 387, IH and notably Chasemore v. Richards 7 HLC 349, per Lord Wensleydale 387-8: 

“[A]ccording to the rule of reason and law, ‘sic utere tuo ut alienum non laedas,’ it seems right to hold, that he ought to exercise his right in a reasonable manner, with as little injury to his neighbour’s rights as maybe. The civil law deems an act, otherwise lawful in itself, illegal if done with a malicious intent of injuring a neighbour, animo vicino nocendi. The same principle is adopted in the laws of Scotland, where an otherwise lawful act is forbidden ‘if done in aemulationem vicini’; but this principle has not found a place in our law.”

See, however, Mayor of Bradford v. Pickles [1895] 2 AC 587 per Lord Watson at 590:

“I cannot assent to the law of Scotland as laid down by Lord Wensleydale in Chasemore v. Richards. The noble and learned lord appears to have accepted a passage in Mr. Bell’s Principles (sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded. I am aware that the phrase ‘in aemulationem vicini‘ was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or injury to the legal rights of his neighbour. In cases of nuisance a degree of indulgence has been extended to certain operations, such as burning limestone, which in law are regarded as necessary evils. If a landowner proceeded to burn limestone close to his march so as to cause annoyance to his neighbour, there being other places on his property where he could conduct the operation with equal or greater convenience to himself and without giving cause of offence, the Court would probably grant an interdict. But the principle of aemulatio has never been carried further. The law of Scotland, if it differs in that, is in all other respects the same with the law of England. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious.”

See, for example the discussion in Moncrieff v. Jamieson [2007] 1 WLR 2620, 2007 SLT 989, HL of the requirement in Scots law to exercise servitude rights on the burdened property civiliter (which is defined by Lord Jauncey in Alvis v Harrison 1991 SLT (HL) 64 at p 67L as meaning “reasonably, and in manner least burdensome to the servient tenement”).

See, for example: Case C-357/98 R v. Secretary of State for the Home Department, ex parte Yiadom [2000] ECR I-9265 at paragraph 26; Case C-287/98 Luxembourg v. Linster [2000] ECR I-6917 at paragraph 43; Case C-387/97 Commission v. Greece [2000] ECR I-5047; and Case 327/82 Ekro [1984] ECR 107, at 119 paragraph 11.   In the context of private law, see, too, Case C-373/97 Diamantis v. Greece [2000] ECR I-1705 at paragraph 34 and Case C-441/93 Pafitis and Others v. TKE and others [1996] ECR I-1347 at paragraphs 68 to 70.

Article 54 of the EU Charter states:

Prohibition of abuse of rights

Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter  or at their limitation to a greater extent than is provided for herein.

Case C-367/96 Kefalas [1998] ECR I-2843 at paragraph 24

In Friend v Lord Advocate (also known as Whaley v Lord Advocate), 2007 SLT 1209, HL Lord Hope stated at paragraph 13:

“Section 29(1) of the Scotland Act 1998 states that legislation which is outside the competence of the Scottish Parliament ‘is not law.’ The section gives full effect to article 17.”            

See, however the following admissibility decisions: Norwood v. United Kingdom 16 November (2004) 40 EHRR SE 11 refusing the protection of Article 10 to an individual who sought to display a BNP poster showing a photograph of the Twin Towers in flame, the words “Islam out of Britain – Protect the British People” and a symbol of a crescent and star in a prohibition sign.  See also W.P. and others v. Poland, 2 September 2004; Garaudy v. France 24 June 2003

See the dissenting opinion of Judge Zupancic in Ždanoka v. Latvia, ECtHR (GC) (2007) 45 EHRR 17:

“The logic underlying article 17 is clear. The legal weapon of claiming human rights must not be perverted. It must not be used to serve those who would in turn violate human rights themselves. The genius of Karl Popper formulated this clearly. He maintained that democracy is for everybody except for those who would destroy it. We are to be tolerant to everything except to acts of intolerance.”

See, too, Refah Partisi (the Welfare Party) v. Turkey, ECtHR (Grand Chamber) (2003) 37 EHRR 1 at paragraph 98:

“No-one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole”

As Lord Brodie observed in Whaley v. Lord Advocate, 2004 SC 78, OH at 104:

“What that [Article 17] was thought to mean is that the Convention could not be used with the intention of destroying any of the rights and freedoms set out in the articles which contained Convention rights. As is observed by Clayton and Tomlinson [The Law of Human Rights] at paras 6.111 and 6.112, it is an unusual Convention right in that it can be used both by the individual against the State and the State against the individual.”

KPD v Germany (1957) 1 YB 222, EComm HR; it is very doubtful that this case would now be followed: see United Communist Party of Turkey v Turkey 1998 RJD-I; Socialist Party v Turkey (1998) 27 EHRR 51; Freedom and Democratic Party v Turkey, Judgment of 8 Dec 1999.

Glimmerveen v Netherlands (1979) 18 DR 187, EComm HR.

See for example Refah Partisi (the Welfare Party) v. Turkey, ECtHR (Grand Chamber) (2003) 37 EHRR 1 at paragraphs 90, 91, 93 and 99:

“The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

Moreover, in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.

[T]he principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy. An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention.

[A] political party whose leaders incite violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds

In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history.”

Mustafa Koçak and Esin Örücü “Dissolution of Political Parties in the name of democracy: cases from Turkey and the European Court of Human Rights” (2003) 9 European Public Law 399.   See too their remarks at 401:

“To prevent democracy from becoming a tool for oppression of minorities and for it to protect itself there are certain sine qua non such as the rule of law, the Rechtstaat, fundamental freedoms and human rights, and secularism, in addition to the minimum requirements of the right to vote, to elect and be elected.  It is generally accepted that the protection of freedoms may necessitate limitation of freedoms, and that the protection of a system can only be achieved by limitation of the system.  There is no freedom to destroy freedom.   In a democratic society it is a duty to preserve democracy.  Democracy cannot grant people the right to reduce it to a formality or destroy its sine qua non.   This means that the concept of democracy itself is also limited.  Limitations are acceptable if it can be guaranteed that democracy will protect and defend itself only through means allowed by democracy.  This position is valid even if the majority does not support it, since use of freedom is an abuse of freedom and freedom cannot by abused by any, including the majority.  This is true whether a democratic system call itself direct, representative, western, liberal, socialist, organic, bourgeois or popular.”

 Lawless v Ireland (No 3) (1961) 1 EHRR 15

See in particular Lawless v. Ireland (No. 3) (1961) 1 EHRR 15 at para 22 where the Court decided that the State was not entitled to deprive the applicants of their Article 5 rights to liberty and Article 6 fair trial rights on the basis simply of accusations of their membership of a terrorist organisation.

Brown v. Stott 2001 SC (PC) 43 per Lord Steyn at 63

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