Strasbourg ties itself in knots over advertising ban

primate adAnimal Defenders International v  United Kingdom, April 22 2013 – read judgment

In what was a profoundly sad day for democracy, on 22 April 2013 the European Court of Human Rights found in favour of the UK government in a landmark test case concerning a TV advertisement produced by ADI in 2005, and subsequently banned under the Communications Act 2003.

This announcement by Animal Defenders International (ADI) describes the fate of a film from which the picture above is taken. The verdict was carried through by a majority of one – eight out of seventeen judges dissented. And the reference to “democracy” in ADI’s response to the judgment is not overblown. The general trend of the majority appears to suggest that it is legitimate, in a democracy, for a government to impose a blanket restriction on the exercise of freedom in the name of broadcasting freedom. Such an aim is not one of those listed in Article 10(2). As some of the dissenting judges pointed out,

The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all.

….A robust democracy is not helped by well-intentioned paternalism. Continue reading

4 slaughterhouses hit high fives: Article 6(1) breaches found

37788084345565012_8oFmp54f_222Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment

These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.

Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.

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Permanent injunction against anti-vivisection protestors

harlan-investigationHarlan Laboratories UK L & Another v Stop Huntingdon Animal Cruelty and others [2012] EWHC 3408 (QB) – read judgment

The High Court has granted a medical testing laboratory a final injunction against anti-vivisectioners protesting outside their premises. 

Harlan laboratories breed animals for medical and clinical research purposes. The applicants’ harassment claim included assertions that the respondent anti-vivisection groups had verbally abused those entering and leaving its premises, blocked and surrounded vehicles entering and leaving the premises in a threatening manner and trespassed on Harlan’s property. They had also photographed Harlan’s employees and recorded their vehicle registration details. Interim injunctions had been granted restraining, inter alia, where and how often the respondents could demonstrate outside of Harlan’s premises.

The issues  in this application were whether the applicants were entitled to summary judgment on their harassment claim and whether the court should grant a permanent injunction pursuant to s.3(3) of the 1997 Protection Against Harassment Act. The applicants also applied for a permanent injunction under section 37 of the Senior Courts Act 1981. Continue reading

The only people really not allowed to mention the Holocaust

Peta Deutschland v Germany  (No. 43481/09) – read judgment

Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.

In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.

Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity. Continue reading

All about killing badgers

R (o.t.a Badger Trust) v. Defra, Ouseley J, 12 July 2012, read judgment, and on appeal, CA, 11 September 2012, not yet available online.

It is impossible to drive through the narrow and high-hedged lanes of Herefordshire without coming across the sad and inevitable outcome of car meeting badger. One estimate is that we may lose as many as 50,000 badgers a year this way. But this case is about whether we should kill a lot more badgers – deliberately.

For many years there has been a debate about whether, and if so, to what extent, badgers cause the spread of tuberculosis in cattle, and, if it does, what should we do about it. Recently, a decision was made by the Department for Environment, Food and Rural Affairs to cull some of them. And this challenge is to the lawfulness of that decision.

At which point we immediately run up against a bit of an institutional accident. Defra, is, when you scratch it, the old Ministry of Agriculture, Fisheries and Food spliced together with bits of the old Department of Environment. And, a bit like the sad nocturnal collision of badger and vehicle, badgers tend to come off worse when farming interests encounter nature, particularly where, as in this context, the science appears equivocal. That sounds rather contentious, but is not meant to. Let me explain why.

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Hunting, animals, and the evolving landscape of rights

Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment

The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions,  the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.

Background

In 2002 the Federal Constitutional Court in Germany ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:

“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…” Continue reading

Veterinary tribunal did not show bias

Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent) [2011] UKPC 48 - read judgment

The disciplinary procedures of the Royal College of Veterinary Surgeons did not give rise to any appearance of bias so as to breach a practitioner’s right to a fair trial under Article 6.

Despite the fact that the membership of the committee dealing with the prosecution of charges was drawn from the College’s governing body, in whose name any charges were brought, and that the body dealing with the determination of charges was also drawn from the College’s governing body, in practice their procedures were fair.

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