CASE OF SARA A. AND MARJAN A. v EUNOMIA
Applicants’ Table of Contents
Article 6 – Right to a Fair Trial
Article 6(1) and 6(3)(c)
The applicants will argue that the First Applicant’s right to a fair hearing pursuant to
Article 6(1) has been breached by the deprivation by the State of her minimum right set
out at Article 6(3)(c) to defend herself through legal assistance of her own choosing.
Firstly by depriving the First Applicant of her chosen legal assistance in absence of
relevant or sufficient grounds that could justify such deprivation.
Secondly by the court failing to ensure effective legal assistance by adjourning the trial of
its own motion when the lawyer appointed by the court failed to do so in order to either
resolve the issue of representation or adequately familiarize himself with the case.
Article 6(1) and 6(3)(b)
The applicants will argue that the First Applicant’s right to a fair hearing pursuant to
Article 6(1) was further breached by the failure of the State to give the First Applicant’s
newly appointed lawyer adequate time and facilities for the preparation of her defence, as
provided for by Article 6(3)(b).
Case Law:
Sakhnovskiy v Russia, 21272/03, 2 November 2010, GC
Meftah and others v France, 32911/96, 26 July 2002, GC
Miminoshvili v Russia, 28 June 2011, Court (First Section)
Czekalla v Portugal, 38830/97, 10 January 2003, Court (Third Section)
Article 10 – Freedom of Expression
Article 10 (1) & (2)
The applicants will argue that the First Applicant’s conviction for ‘promoting a platform
for hateful exchange’ and ‘endorsing hate speech’ constitutes a violation of Article 10.
Firstly, as a passive, neutral and automatic facilitator of public debate the First Applicant
should not be held liable for content she did not author given that she acted expeditiously
in removing set content upon gaining knowledge thereof. This compromises the
foreseeability of the criminal provision’s effects in the applicant’s case.
Secondly, the imposition of what amounts to vicarious and strict criminal liability in such
cases is tantamount to a prohibition on users’ comments where the blogger is unable to
effectively pre-monitor the user-generated content. The measures taken were therefore
disproportionate.
Thirdly, the First Applicant’s blog is an academic platform from which she derives no
direct commercial benefits and as such her responsibility to monitor the content produced
by 3rd parties is reduced.
Fourthly, the First Applicant’s remarks constituted a contribution to academic literature
regarding a situation that is external to Eunomia. Consequently, the violent reaction to the
article in Eunomia was not reasonably foreseeable.
Fifthly, the time taken by the First Applicant to become aware of and remove the
offensive content was reasonable in the circumstances.
Sixthly, the penalty imposed was the most onerous sanction possible within the limits set
by the legislative provision, which is inappropriate in the circumstances.
Seventhly, there is a clear international tendency to move away from criminal penalties
for expression-related offences thereby diminishing the margin of appreciation available
to states.
Case Law:
Sürek v. Turkey
Delfi AS v. Estonia
Relevant Instruments
Council of Europe Parliamentary Assembly, Resolution 1577 (2007), Towards
decriminalization of defamation, 4 October 2007.
Inter-American Commission on Human Rights, Annual Report 2008. Annual Report of
the Office of the Special Rapporteur for Freedom of Expression, Chapter IV (A
Hemispheric Agenda for the Defense of Freedom of Expression), OEA/Ser.L/V/II.134
Doc. 5 rev. 1. 25 February 2009
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on
certain legal aspects of information society services, in particular electronic commerce, in
the Internal Market ('Directive on electronic commerce')
Report of the Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression, Frank La Rue A/HRC/17/27, 16 May 2011
Article 9 – Freedom of Thought, Conscience and Religion
The Applicants will argue that the domestic legislation prohibiting the use of the hijab in
public constitutes a violation of Art. 9, as it does not meet the requirements of a
permissible restriction of the right under Art. 9(2) for the following reasons:
Firstly, the law does not pursue a legitimate aim since the use of the hijab in public does
not constitute a risk to public safety, public order/health/morals or the rights and
freedoms of others.
Secondly, even assuming the law does pursue a legitimate aim, the overbroad nature of its
scope, in the sense that it applies to any citizen in any public space, does not comply with
the democratic necessity test.
Thirdly, in the specific case of the Second Applicant, she is a private citizen and her use
of the hijab did not have the effect (intended or otherwise) to proselytize or exert undue
pressure on others.
Case Law
Ahmet Arslan v. Turkey
SAS v. France
Leyla Sahin v. Turkey
Dahlab v. Switzerland
Article 8 – (Right to Respect of Private and Family Life) and 10 (Freedom of
Expression)
The applicants will argue that the legislation prohibiting the wearing of the hijab in public
interferes with the Second Applicant’s Article 8 and 10 rights for the same reasons as
those set out in the applicants’ submission with regard to Article 9.
Case Law:
Barik Edidi v. Spain (no. 21780/13)
S.A.S. v. France (no. 43835/11)
Article 14 and Protocol 12 – Prohibition of Discrimination
The second applicant will argue that the blanket ban in Eunomian legislation imposed on
wearing hijab in public is discriminatory and a breach of Article 14 in conjunction with
Article 8 and 9.
Firstly, the legislation produces discrimination against the Muslim people in that they are
unable to fully exercise their rights under articles 8, 9 and 10 on the grounds of religion
and association with a national minority
Secondly, the blanket ban has no legitimate aim.
Case Law:
SAS v. France
Eweida and Others v. The United Kingdom
Explanatory Report of the Council of Europe on Protocol No. 12 to the Convention for
the Protection of Human Rights and Fundamental Freedoms (ETS No. 177),: Available
at: http://conventions.coe.int/treaty/en/reports/html/177.htm
Article 13 – Right to an Effective Remedy
The applicants will argue that Article 13 was violated because their attempt to seek a
remedy for the violation of their Convention rights was ignored at first instance (the
General Council of the Judiciary) and dismissed within a short time with no or no
apparent investigation and/or consideration in the Supreme Court.
Case Law:
Metropolitan Church of Bessarabia and Others v. Moldova
Kudła v. Poland
Mikulski v. Poland
İlhan v. Turkey [GC]