DIGNITY
DIGNITY ....................................................................................................................................................... 1
Germany ......................................................................................................................................................... 2
GBL Article 1.1. ......................................................................................................................................... 2
GBL Article 5.1. ......................................................................................................................................... 2
GBL Article 5.3. ......................................................................................................................................... 2
30 BVerfGE 173 (1971) ......................................................................................................................... 2
45 BVerfGE 187 (1977) ......................................................................................................................... 7
GBL Article 2.1. ....................................................................................................................................... 11
90 BVerfGE 255 (1994) ....................................................................................................................... 11
India .............................................................................................................................................................. 14
THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITES)
ACT 1989. ................................................................................................................................................ 14
Need to locate relevant cases: ................................................................................................................... 14
NAMIBIA: ................................................................................................................................................... 15
Right to respect of human dignity ............................................................................................................. 15
Ex Parte Attorney-General: In re Corporal Punishment by Organs of State 1991 NR 178 .................. 15
UNITED KINGDOM ................................................................................................................................... 16
Right of bodily integrity: ...................................................................................................................... 16
Children: ............................................................................................................................................... 16
Intimate Searches:................................................................................................................................. 16
Immigrants: ........................................................................................................................................... 16
EUROPEAN COURT OF HUMAN RIGHTS ............................................................................................. 16
BOTTA v. ITALY (153/1996/772/973) 24 February 1998: Private life: includes person’s physical
and psychological integrity: lack of facilities for disabled people at beaches ....................................... 16
Canada .......................................................................................................................................................... 21
Bell v. Ladas (1980), 1 C.H.R.R. D/155 (Ont. Bd.Inq.) [Eng. 6 pp.]: Sexual advances by employer - poisoned work environment -- Definition of sexual harassment similar fact evidence -- Employer
liability for supervisor........................................................................................................................... 21
Shaw v. Levac Supply Ltd. (1990), 14 C.H.R.R. D/36 (Ont. Bd.Inq.) [Eng. 32 pp.]: Conduct
denigrating sexuality, personal appearance, or vexatious conduct constitutes sexual harassment -verbal abuse and denigration ................................................................................................................ 22
Bailey v. Anmore (Village) (1992), 19 C.H.R.R. D/369 (B.C.C.H.R.) [Eng. 11 pp.]: Degrading and
Rude Behaviour Not Necessarily Sexual Harassment .......................................................................... 23
Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand [1996] 3
S.C.R. 211: Personal dignity -- Illegal strikes by employees of hospital for mentally disabled -- Trial
judge concluding that patients suffered prejudice in form of temporary discomfort -- Whether there
was interference with their right to personal dignity -- Meaning of "dignity" ..................................... 24
Human dignity
10. Everyone has inherent dignity and the right to have their dignity respected and
protected.
Germany
GBL Article 1.1.
The dignity of man shall be inviolable. To respect and protect it shall be the duty of all
state authority.
GBL Article 5.1.
Everyone shall have the right freely to express and disseminate his opinion by speech,
writing and pictures and freely to inform himself from generally accessible sources.
Freedom of the press and freedom of reporting by means of broadcasts and film are
guaranteed. There shall be no censorship.
GBL Article 5.3.
Art and science, research and teaching, shall be free. Freedom of teaching shall not
absolve from loyalty to the constitution.
30 BVerfGE 173 (1971)
[Facts:
In 1936, after having left Nazi Germany, Klaus Mann wrote and published @Mephisto-Novel of a Career@. The main character of that book, Hendrik Hoefgen, is an obvious and
exaggerated portrait of the German actor Gustaf Gruendgens. Gruendgens had been a
friend of Klaus Mann before the Germans elected Hitler and used to be married to
Mann=s sister. After 1933, Gruendgens renounced his moderate political position,
worked with the Nazis and became rich and famous. Klaus Mann wrote about the purpose
of his work: AI thought it pertinent, indeed, necessary to expose and analyze the abject
type of the treacherous intellectual who prostitutes his talent for the sake of some tawdry
fame and transitory wealth.@ The book was first published in Amsterdam in 1936 and
later also in the German Democratic Republic. In 1963 the publishing house
Nymphenberger Verlagshandlung, GmbH announced that it intended to publish
AMephisto@ in Germany. A couple of months later and after the death of Gustaf
Gruendgens, the adopted son of the actor sought a court order prohibiting the publication
of the book arguing that a publication would violate his father=s right to human dignity as
guaranteed in Article 1.1. of the Basic Law and would completely distort his father=s
image. Moreover he argued that the novel is plainly a cheap revenge of Mann against
Gustaf Gruendgens for divorcing his sister.
The trial court refused to issue such an order but the Hamburg Court of Appeals reversed
and the High Court of Justice affirmed. The publishing house then filed a constitutional
complaint with the Federal Constitutional Court challenging the holding of the High
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Court of Justice arguing that that holding violates the right to freedom of expression and
art as protected by Article 5. of the Basic Law.
Issue:
In the present case, can the basic right of the freedom of art from Article 5.3. first
sentence of the Basic Law justify the violation of the protected human dignity of the
deceased actor Gruendgen from Article 1.1. of the Basic :Law?
Holding:
No, it cannot.
Discussion:]
C.
III.
Article 5.3. first sentence of the Basic Law declares that art, as well as science, research
and teaching, shall be free. With this guarantee of freedom, Article 5.3. first sentence of
the Basic Law, following wording and meaning, first includes an objective valuedetermining basic principle [which] regulates the relation of the realm of art to the state.
Simultaneously, [Article 5.3. first sentence] grants everyone who works in the realm of
art an individual right to freedom [of art] (individuelles Freiheitsrecht).
1. ...The guarantee of the freedom of art encompasses the Asphere of creation@
(Werkbereich) and the Asphere of impression@ (Wirkbereich) of artistic creation. Both
spheres form an insoluble unity. Not only the artistic work itself (sphere of creation), but
furthermore the presentation and distribution of the artwork are, as a matter of fact,
necessary for the encounter with the artwork; this Asphere of impression@, within which
the public gains access to the artwork, [was the prime rationale for the guarantee of the
freedom of art]. That the granting of individual rights to artists is insufficient to ensure
the freedom of art can be shown by looking back at the national-socialist regime and its
policy with respect to art. Without including the sphere of impression of artwork into the
guarantee of the freedom of art, the basic right [would have little meaning]...
3. Article 5.1. first sentence of the Basic Law guarantees the freedom of activity in the
realm of art comprehensively. Therefore, to the extend that the publishing media are
necessary to establish relations between artist and audience, also those persons are
protected by the guarantee of the freedom of art who hold such mediating positions.
Because literature could not evoke any effects in the public without multiplication,
distribution and publication, and therefore the publisher is an indispensable link between
the artist and the audience, the guarantee of freedom [of art] also covers the [publisher=s]
work. The petitioner may therefore, as publisher of the novel, refer to the basic right
[guaranteed] in Article 5.3. first sentence of the Basic Law.
4. ...The notion that the freedom of art must be limited pursuant to Article 2.1. first halfsentence of the Basic Law, by the rights of others, by the constitutional order, and by the
moral code, must be rejected as well. As the Federal Constitutional Court has consistently
recognized, such a notion is irreconcilable with the subsidiary relationship of Article 2.1.
of the Basic Law to the specificity of particular[ly mentioned] freedom rights, which
prevents the application of the community objection (Gemeinschaftsvorbehalt), in Article
2.1. second half-sentence of the Basic Law, to the areas of life which are protected by
particular basic rights...
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5. On the other hand, the right of freedom [of art] is not granted without limits. Like all
basic rights, the guarantee of freedom in Article 5.3. first sentence of the Basic Law
presumes the Basic Law=s image of man, which is that of man as being a personality who
is responsible for his own life and who develops freely within the social community. [The
fact] that the basic right has no qualifying limitation means that the freedom of art is
limited only by the constitution itself. Since the freedom of art contains no provision
allowing the legislator to limit it, it may neither be weakened by general laws, nor may it
be weakened by an indefinite clause which has no anchor in the constitution and which
does not come from an endangerment of goods which are necessary for the continued
existence of the national community. Rather, conflicts with respect to the freedom of art
must be resolved, from the basis of the value order established by the Basic Law and the
unity of this fundamental value system, by means of constitutional interpretation. As part
of the basic value system the freedom of art is assigned to the human dignity as
guaranteed in Article 1 of the Basic Law, which is the supreme value and dominates the
entire value system of basic rights. However, the guarantee of freedom of art can come
into conflict with the constitutionally protected sphere of personality, because a work of
art can also effects on a social level.
That the use by the artist of personal and life data of people in his environment can affect
the right of the portrayed person to societal esteem and respect, is due to the fact that such
a piece of art not only works as aesthetic reality, but also has an existence in the aspects
of reality [which draw on personal and life data of existing persons] that, although
exaggerated in the artistic portrait, nevertheless do not loose their effect on the social
level. These effects on the social level unfold themselves Anext@ to the [actual] sphere
of art; nevertheless they have to be respected within the realm of freedom granted by
Article 5.3. first sentence of the Basic Law, because the Areal@ and the Aaesthetic@
worlds form one unity in the work of art.
6. The courts [below] properly referred to Article 1.1. of the Basic Law in order to
determine the protected sphere of personality of the now deceased actor Gruendgens. It
would be incompatible with the constitutional command of the inviolability of human
dignity, [the right] which is the foundation of all other basic rights, if the human being,
who conceives dignity by virtue of his personhood, could be degraded or humiliated in
his right to respect even after his death. Accordingly, the duty imposed on all state
authority by Article 1 of the Basic Law to protect the individual from attacks on his
dignity does not end with death...
7. The solution of the tension between the protection of personality and the right to
freedom of art can therefore not only address the effects of a work of art in the extraartistic social sphere, but also has to take into account art-specific aspects. The image of
men upon which Article 1.1. of the Basic Law is founded, is being partly molded by the
freedom guarantee in Article 5.3. first sentence of the Basic Law, just as vice versa, [the
guarantee of freedom of art] is being influenced by the value conception of Article 1.1. of
the Basic Law. Neither is the right of the individual to societal respect and esteem
superior to the freedom of art, nor may art simply disregard the general right to respect of
human beings.
4
The decision of whether the publication of a work of art, which uses personal data from
reality as a means of artistic representation, shall be opposed because one has to fear that
it will strongly interfere with the protected private sphere of the portrayed person, can
only be decided after weighing all aspects of the individual case. [In deciding this], one
has to take into account, if and to what extent, the Aimage@ [of some figure] seems to
have become so independent of the Aoriginal= by means of artistic shaping and
incorporation into and subordination to the complete organism of the work of art, that the
individual and personal have been objectivized into the general and symbolic aspects of
the Afigure@. However, if such an analysis, bearing in mind the particularity of the
sphere of art, results in the knowledge that the artist drew or even intended to draw a
Aportrait@ of the Aoriginal@, then the extent of the artistic abstraction or the extent and
seriousness of the Afalsification@ and the impact thereof on the reputation of the affected
person, become decisive.
IV.
2. The Hamburg Appellate Court, being the last court level entitled to find facts,
determined that Gruendgens is a person of contemporary history and that the memory of
him among his audience is still vivid. Due to these fact findings the Hamburg Appellate
Court and the Federal High Court presumed, that the right of the deceased Gruendgens to
have his respect protected, still exists in the social sphere. In this regard the Federal High
Court correctly noted that the need for protection--and similarly the duty to protect-decreases in the degree in which the memory of the deceased fades and in the course of
time the interest not to falsify the picture [of Gruendgens= life] diminishes. This
application of Article 1.1. of the Basic Law is not to be criticized. On the other hand, the
courts presumed that the novel of Klaus Mann constitutes a work of art within the
meaning of Article 5.3. of the Basic Law an that the petitioner may claim this right.
Thereafter the courts recognized the deep constitutional conflict between the two spheres
protected by Article 1.1. of the Basic Law and 5.3. first sentence of the Basic Law. They
attempted to solve the conflict by weighing the conflicting interests.
3. The Federal Constitutional Court consistently held in the past that the decisions [of
lower courts] can only be reviewed narrowly [when a constitutional complaint is decided
upon], that particularly, the establishment and evaluation of the fact, the interpretation of
the laws and their application to the individual case, are solely the business of the [lower]
courts and not subject to review by the Federal Constitutional Court... The Federal
Constitutional Court is not entitled, as opposed to a regular appellate court, to replace the
evaluation of the individual case by the responsible judge with its own. On the contrary, it
can only find a violation of a basic right in cases when the responsible judge either did
not recognize that [the case requires] a weighing of conflicting basic rights, or when his
decision rests on an incorrect interpretation of the meaning of the one or the other basic
right, especially with respect to the scope of the sphere the basic right is to protect.
The review of the contested decisions with these standards results [in the following]: The
Hamburg Appellate Court and the Federal High Court realized that a tension between the
spheres protected by Article 1.1. and Article 5.3. first sentence of the Basic Law exists,
and that [this tension] must be solved by means of weighing (compare C III 7). If one
recognizes the contested decisions in their entire context, [one] cannot determine, that the
5
are principally based on an incorrect understanding of the meaning and the scope of the
protected spheres of the two basic rights. In particular, [a] faulty understanding of the
essential content of the basic right [which] lost in the weighting, which the petitioner
claims, cannot be found. The courts did not solely focus on the effects of the novel in the
extra-artistic social sphere, but also took into account art-specific aspects. They deeply
and thoroughly outlined that the fictional character of Hendrik Hoefgen in many details
resembles the physical appearance and the course of life of Gruendgens so clearly, that a
not insignificant number of readers [would] easily Hoefgen as Gruendgens. Whether this
is correct is not for the Federal Constitutional Court to decide; in any event lies therein
the determining weighing of the facts by the courts, that the Aimage@ Hoefgen did not
get so independent of, and in the artistic presentation transcended, the Aoriginal@
Gruendgens by means of artistic shaping of the material and its incorporation into and
subordination to the entire organism of the novel, that the individual and personal appears
sufficiently objectivized into the general and symbolic [aspects] of the Afigure@. The
courts moreover discussed extensively that the author drew a fundamentally negative
picture of the personality and character of Hoefgen and therefore of the deceased
Gruendgens, which in many details is untrue, enriched by invented behavior--namely the
invented behavior towards the black dancer--which characterizes a negative conviction,
and which contains libel and slander against Gruendgens by means of the person of
Hoefgen. The Hamburg Appellate Court labeled the novel--uncontested by the Federal
High Court--a Adefamatory piece of writing.@ There are no sufficient grounds to counter
this preliminary judgment of the courts, that the author drew a negative and falsifying
portrait of the Aoriginal@ Gruendgens.
The result found by the courts, that with the [present] factual and legal situation the
protection from Article 5.3. first sentence of the Basic Law fails [to override the claimed
right to have the publication enjoined], can finally not be questioned with the
deliberation, that an order enjoining the publication stands out of proportion to the
expected encroachment of the right to respect of the deceased Gustav Gruendgens. [It is
true] that the Federal Constitutional Court has repeatedly emphasized that the principle of
proportionality has constitutional rank and therefore must be considered at all
encroachments of state authority into the sphere of freedom of the citizen. Such an
encroachment is, however, not at hand in the present case. The courts simply had to
decide a private claim of one citizen against the other, which means to render concrete a
private legal relation in an individual case. For the decision upon the legal basis and
extent of a private legal claim, for instance, a right to claim damages, one cannot refer to
constitutional requirements which are to be considered with respect to the relation of the
citizen towards the state [in cases where the state encroaches upon] the sphere of freedom
of the individual. The function of private law lies primarily in the resolution of conflicts
of interest between persons of equal legal status in the most adequate way [for the
situation at hand]. Following this, the Federal Constitutional Court can only review the
contested decision to enjoin publication under the aspect whether Article 3.1. of the Basic
Law has been complied with. [The question of whether Article 3.1. has been complied
with] has to be answered positively...
V.
6
[In the concluding paragraph the Federal Constitutional Court holds that the right to
freedom of expression does not influence the decision here.]
[signed by all eight judges; one judge filed a dissenting opinion]
45 BVerfGE 187 (1977)
[Facts:
This case has its origin as a District Court case in the town of Verden. The defendant
Detlev R. was policeman and drug dealer. One of his customers, the substance abuser
Guenter L., blackmailed the defendant and demanded free drugs. Detlev R. pretended to
go along and scheduled a visit at Guenter L.=s house. The defendant actually provided
Guenter L. with the demanded drugs, but while the latter was busy preparing an injection,
Detlev R. fatally shot him in the head three times at close range.
The case is before the Federal Constitutional Court due to a referral from the Verden
District Court. The reason for the deferral was that the Verden court deemed the murder
and the manslaughter statutes, Sections 211 and 212, respectively, of the Criminal Code
in the revised version of 1969, incompatible with the human dignity clause of Article 1.1.
of the Basic Law. The murder and the manslaughter statute both provide for life
imprisonment in extreme cases--such as homicide to satisfy sexual urges, homicide as a
result of greed, homicide to cover up another crime, extreme homicides in general, et
cetera. The Verden court argued in detail that life imprisonment can be shown to destroy
human beings within about twenty years. The District Court outlined how such long
prison terms turn people into spiritual and physical wrecks. It concluded that the
permanent exclusion of the criminal from society destroys him psychologically and
therefore the legislator violated its duty to respect human dignity as commanded by
Article 1.1. of the Basic Law when it passed Sections 211 and 212 of the Criminal Code.
{Translator=s note:
The Verden court also found the statutes in violation with Article 2.2. second sentence in
conjunction with Article 19.2. of the Basic Law, as well as with Article 3.1. of the Basic
Law. The holding by the Federal Constitutional Court includes discussions of these
objections as well. I chose to drop them and focus on the discussion of human dignity.}
Issue:
Are statutes which allow for life imprisonment in certain extreme cases of homicide
compatible with Article 1.1. of the Basic Law which commands that the state has the duty
to respect and protect human dignity?
Holding by the First Senate:
Yes, it is.
Discussion:
The Federal Constitutional Court reviewed briefs from various German courts and state
justice departments. Then it surveyed scientific studies and statistics on life
7
imprisonment. After it finds the referral by the District Court valid, proceeds with the
discussion.]
C.
Section 211 of the Criminal Code is, within the scope of this review and in compliance
with the following text and the restricted interpretation [of Section 211] which can be
derived therefrom, compatible with the Basic Law...
II.
1. Respect and protection of human dignity are among the constitutional principles of the
Basic law. The free human personality and [human] dignity represent the highest legal
values within the constitutional order. The state in all its form has the duty to respect and
to protect the dignity of human beings.
This is founded on the conception of man as a spiritual-moral being, that has the potential
to determine himself in freedom and develop from within. This freedom, within the
meaning of the Basic Law, is not the one of an isolated and self-regarding individual, but
rather [it is the freedom of an individual] that is related to the community and bound by it.
[Due to the fact that the individual is bound by the community, the freedom] cannot be
Ain principle unlimited. The individual must allow those limitations of his freedom to act
that the legislator deems bearable [and necessary] in particular factual circumstances for
the nourishment and support of the communal living with each other; however, the
autonomy of the individual must be protected. This means, also, that within the
community each individual must be recognized, as a matter of principle, as a member
with equal rights and a value of his own. The sentence Athe human being must always
remain the end of itself@ has unlimited validity in all areas of the law; for the dignity of
man as person, which can never be taken, consists particularly therein, that he remains
recognized as a person who bears responsibility for himself.
In the area of criminal law, in which highest demands to the maintenance of justice are
posed, Article 1.1. of the Basic Law determines the understanding of the nature of penal
sanctions and the relation between guilt and atonement. The fundamental principle
Anulla poena sine culpa@ has the rank of a constitutional norm. Every penal sanction
must bear a just relation to the severity of the offense and the guilt of the offender. The
command to respect human dignity means in particular that cruel, inhuman and degrading
punishments are not permitted. The offender may not be turned into a mere object of [the
state=s] fight against crime under violation of his constitutionally protected right to social
worth and respect. The fundamental prerequisites of individual and social existence of
men must be preserved. From Article 1.1. of the Basic Law, in conjunction with the
principle to maintain a state based on social justice, one can--and this is particularly true
in the execution of criminal punishments--derive the duty of the state to allow [everyone
at least] that minimum level of existence at which human dignity is conceived. It would
be inconsistent with human dignity perceived in this way if the state were to claim the
right to forcefully strip a human of his freedom without [the human] having at least the
possibility to ever regain freedom.
[In the course of the discussion] one must never loose sight [of this principle]: The
dignity of the human being is something indispensable. The recognition of what is
necessary to comply with the command to respect human dignity is, however, inseparable
8
from the historical development. The history of criminal law clearly shows that most
cruel punishments were always replaced by milder punishments. The progress, away
from more raw towards more humane, away from more simple towards more
differentiated forms of punishment, has continued, and the path future progress will take
becomes visible [from this historical analysis]. The judgment on what is necessary for
[the maintenance of] human dignity can therefore only rest on present understanding and
claim no right to timeless validity.
2. If these standards are used in assessing nature and effect of life imprisonment, one
reaches the conclusion that no violation of Article 1.1. of the Basic Law is before the
court...
[The court engaged in a lengthy discussion about the actual negative effects of very long
prison terms and found that reputable experts come to very divergent conclusions.]
c) With such a factual background, the constitutional review must exercise restraint. It is
true that the Federal Constitutional Court has the duty to protect the basic rights against
[infringements] from the legislator. Therefore, the court is in its review not bound by the
legal understanding of the legislator. However, if assessments and actual judgments by
the legislator are of importance [for the constitutional review], then the court may, as a
matter of principle, only overrule those which are possible to disproof. It seems
worrisome, however, that, even in cases where serious interference with basic rights are
under review, uncertainties in the evaluation of facts [are to be resolved] to the burden of
the holder of the basic right. When the Federal Constitutional Court nevertheless denied
to find a violation of the inviolability of the dignity of man as guaranteed by Article 1.1.
of the Basic Law, [that decision] was mainly due to the following reasons:
aa) Lifetime imprisonment finds its constitutionally necessary complement in a sensible
execution of treatment. Penal institutions are obliged, even in the cases of life
imprisonment, to promote the rehabilitation of the inmates, to maintain their ability and
willingness to function as human beings and to offset damaging consequences caused by
the loss of freedom and thereby especially counter all deforming alterations of
personality. These obligations for the execution of the penal sanctions are based on the
Constitution, they can be derived from the inviolability of the dignity of man as
guaranteed by Article 1.1. of the Basic Law. If these obligations are adequately complied
with by the penal institutions, then [the penal institutions] substantially contribute to
counter, for instance, the threat of changing personalities of inmates.
The execution of criminal penalties in the Federal Republic of Germany has already been
more [as of today] than a mere Aexecution to incapacitate@, but rather [the authorities]
have attempted to achieve an Aexecution with treatment@ aimed at the reintegration [of
the criminals] into society. This is consistent with former decisions by the Federal
Constitutional Court on issues of the execution of criminal penalties. The court has
emphasized several times that the demand to achieve a reintegration into society [of the
criminals] is constitutionally consistent with the self-understanding of a community
which put human dignity at its center and which is committed to the priciple of social
justice. The prisoner=s interest in the reintegration into society flows from Article 1 of
the Basic Law in relation with Article 2.1. of the Basic Law. The condemned offender
must be granted the chance to reenter the community after having atoned for his crime. It
9
is the duty of the state to take all possible measures it can [reasonably] be expected to
bear, which are useful and necessary to achieve this goal of the execution of the criminal
penalty.
If one assumes that even [the criminal] sentenced to life imprisonment must principally
be granted a possibility to regain his freedom, then he must also have a right to be
prepared to reenter the society, even if he will only after a long period of atonement for
his crime have the possibility to be obliged to handle a life in freedom. Even in such cases
can the execution of the criminal penalty establish the prerequisites for a later release and
ease the convict=s reintegration into society...
bb) [Empirical data shows] that the full serving of a life imprisonment sentence is a rare
exception. [The criminals] sentenced to life imprisonment--except in a few cases in which
the predictions [of social reintegration] are negative and for reasons of public safety a
continued execution of the sentence is necessary--are [most often] being released on
parole. [This practice] results in a further significant limitation of the danger of serious
alterations of [inmates=] personalities. [A summary study of the parole administration in
the states shows] that over a period of thirty years, of 702 inmates with lifetime sentences
who were released, very few (48) were released before 10 years and also very few were
released after the extreme length of up to thirty years (27). The vast majority of parole
releases happens between the 15th and the 25th year of the sentence...
III.
[The court then raised the problematic issue that parole is granted on a discretionary basis
and noted the divergent standards in various states.]
4.a) The assessment of the constitutionality of lifetime imprisonment especially with
references to Article 1.1. of the Basic Law and the principle of the rule of law
(Rechtsstaatsprinzip) revealed that a humane execution of the lifetime imprisonment can
only be assured if the sentenced criminal has a concrete and principally attainable
possibility to regain freedom at a later point in time; for the core of human dignity is
struck if the convicted criminal has to give up any hope of regaining his freedom no
matter how his personality develops. In order to assure this perspective [to regain freedom
at some point in the future], which is the prerequisite for rendering lifetime imprisonment
bearable according to the [court=s] understanding of human dignity, in a manner which
meets constitutional requirements, the [current] legal rules of parole are not sufficient.
b) [The court then discusses possibilities to improve the current legal rules of granting
parole. Although it leaves it to the legislator to find regulations which would meet
constitutional requirements it discusses in an affirmative manner a reform proposal
drafted by the Justice Ministry.] This draft provides that the execution of the penal
sanction of life imprisonment can be suspended under parole with the consent [of the
inmate] after an adequate part of the sentence has passed--the draft proposes 12 to 15
years--and one can justify to test whether the convict will cease to commit crimes. The
decision whether to release [the inmate] shall be rendered by independent parole review
boards. These decisions may be appealed at specified higher courts. The foreword of the
draft states that under certain circumstances it shall be possible to suspend the continued
execution of a lifetime sentence...
[signed by all eight judges]
10
GBL Article 2.1.
Everyone shall have the right to the free development of his personality in so far as he
does not violate the rights of others or offend against the constitutional order or the moral
code.
90 BVerfGE 255 (1994)
[Facts:
This constitutional complaint challenges a fine imposed upon and upheld against the
petitioner for libel. The petitioners brother was in prison. In an earlier letter to his sister
the brother expressed his miserable state due to his treatment in prison. The sister feared
that her brother might attempt suicide and wrote him a letter back of which the following
is an excerpt: Also do not forget that you nearly exclusively deal with cretins who long
for promotion or are plainly perverts. Think about the guards in concentration camps and
you know what kind of a human group surrounds you. Try [with the aid of these
thoughts] to maintain your positive approach to life and your merry nature which you
usually have. The letter was read by officers in the prison as part of the routine checks of
incoming and outgoing mail. Because the brother was just being moved between two
prisons, two prisons filed a suit against the sister for libel.
A trial court in Ansbach sentenced the petitioner to pay a fine for libel. The District Court
in Ansbach affirmed. The High Court of Appeals in Bavaria reversed and remanded the
case to the District Court in Ansbach. The District Court reinstated the earlier fine. The
High Court of Appeals in Bavaria reversed and remanded the case to the District Court in
Nuremberg. The District Court reinstated the earlier fine. The third appeal to the High
Court of Appeals in Bavaria was unsuccessful.
The petitioner then filed a constitutional complaint. She argued that the decisions above
upholding the fine against her for libel violate her basic rights from Articles 2.1., 3.1.,
5.1., 6.1., 10.1., and 14.1. of the Basic Law. She argued that for her there was no way to
communicate with her brother in privacy because an officer was present at every visit and
all written communication was being read by prison officers. She contended that free
expressions of opinion to close family members must take precedence over the right of
officers in the prison to have their honor protected.
The Bavarian Ministry of Justice submitted a statement in which it supports the courts in
imposing a fine upon the petitioner.
Issue:
Does the right to privacy of the petitioner override the right of the officers in prison to
have their honor protected?
Holding by the First Senate:
Yes, it does.
Discussion:]
B.
The constitutional complaint is justified.
11
I.
The challenged [court] decisions violate the petitioners basic right to freedom of
expression (Article 5.1. of the Basic Law) in relation with the general right to personality
(Article 2.1. in relation with Article 1.1. of the Basic Law).
1. The petitioner has been punished for a statement. The constitutional standards for the
[review] of statements and the permissablity of limitations derive from the basic right to
freedom of expression. Because the statement was made within the private sphere
protected by Article 2.1. in relation with Article 1.1. of the Basic Law, the basic right [to
privacy has to be added to the discussion].
2. The statement of the petitioner enjoys, [in its role] as a value judgment, the protection
of the freedom of expression, without the justification or the groundlessness [of the
statement] being relevant (*). However, the freedom of expression is subject to the
boundaries that derive from the regulations for the protection of the personal honor.
[Among these regulations] is Section 185 of the Criminal Code on which the conviction
was based. When interpreting and applying this regulation [one] must, however, take into
account the importance and scope of Article 5.1. of the Basic Law (*). This requires [one
to conduct], within the framework of ordinary law, a case-related balancing between the
limited basic right and the legal value which the law limiting a basic right serves. In doing
this [balancing], at least in cases of heavy and unjustified insults in the private sphere, the
protection of the honor regularly claims precedence over the freedom of expression (*).
3. However, this balancing rule does not hold without exception. It rests upon the
unarticulated prerequisite that the insulting statement is being made to the affected person
or third persons and unfolds its degrading effect. This prerequisite is not present when the
statement happens within a sphere which is protected from the perception of the affected
person or third person.
Such a sphere is being [created] by the general right to personality. Article 2.1. of the
Basic Law guarantees the free development of the personality. Among the conditions
[necessary] for the development of the personality belongs that the individual has a
sphere in which he remains unobserved and on his own, or, [in which] he can interact
with people of his particular trust without consideration of social behavioral expectations
and without the fear of sanctions by the state. From the importance of such a possibility to
retreat for the development of the personality it follows, that the protection of Article 2.1.
of the Basic Law, in relation with Article 1.1. of the Basic Law, also encompasses the
private sphere (*).
The protection of the private sphere [also includes] intimate communication. Especially
with respect to statements towards family members and confidants, the aspect of the
articulation of an opinion and thereby the attempted influencing of the set of opinions of
third persons often stands less in the foreground than the aspect of self-development
(Selbstentfaltung). Only under the circumstances of particular confidentiality, a complete
expression of his emotions, the revelation of confidential desires or fears, the frank
articulation of the own judgment on circumstances and persons, or a relieving selfportrayal is possible for the individual. Under such circumstances it may come to
statements of such content or form (Auesserungsinhalten oder -formen) which the
individual would not permit himself facing outsiders or in the public. Nevertheless,
12
[statements of such a kind] deserve, as an expression of personality and as a condition of
its free development, the protection of a basic right.
However, the confidential communication does not exhaust itself in such statements
aimed at self-development. Statements in the private sphere or in the closest family circle
not only serve to give the own feelings unobscured expression or [to find liberating relief
for ones frustrations. Such statements] may also refer to family members or other
confidential persons and offer aid or relief to them in a crisis of the personality or in
threats to the existence and thereby contribute to the spiritual stabilization or the ability to
be socially integrated (*). Also under such circumstances it may come to statements of
such content or form which would be avoided in regular situations, but [which]
nevertheless deserve the protection of basic rights of Article 2.1. of the Basic Law in
relation with Article 1.1. of the Basic Law.
[Court holdings] and literature on criminal law account for this in that they grant, in cases
of statements violating the honor of non-present third persons [made] in very close circles
of life, a sphere [in which no libel is possible] (beleidigungsfreie Sphaere), when the
statement is expression of the particular trust and no justified possibility of its passing
on exists (*)...
In contrast to the assumption [of the courts below], the protection of the sphere of
confidentiality is not lost when the state obtained for itself knowledge of statements made
in confidentiality. This also holds for the control of letters of convicts pursuant Sections
29.3. and 31 of the Penal Execution Law. It is true that the monitoring [of convicts mail]
is, as a matter of principle, constitutionally permissible for the protection of other
significant legal values. [The monitoring] is aimed at averting dangers to the aim of the
execution of the punishment and the safety and order of the penal institution as well as
preventing the blurring of committed and the doing of new offenses. It is also
unavoidable that the officer [of the penal institution], in the course of such monitoring,
gains knowledge of the entire content of the monitored piece of writing. The gaining of
the knowledge of the statement does not alter anything [with respect] to the belonging [of
the statement] to the private sphere protected by basic rights. It is true that by means of
the authority to monitor [the private sphere] can regularly be broken into, however, [the
authority to monitor cannot] be used to redefine [the private sphere] into a public sphere.
On the contrary, the protection of the basic right is instrumental particularly therein, that
the confidential character of the [statement] is kept despite the monitoring by the state.
[The confidential character] is not already lost just because the author knows of the
monitoring of the letter (*).
Something else only holds if the [person expressing an opinion] himself does away with
the confidentiality so that the opportunity of third persons to perceive his statements can
be attributed to him and were not brought into existence just by the intervention of the
state. This can for instance be the case if the [person expressing an opinion] does not take
sufficient care [to prevent] the gaining of knowledge by third persons or if he chooses
means of transmission which are subject to monitoring despite [the fact] that he could
have established unmonitored contact. This is particularly the case if a statement to a
person of confidence is solely used to hurt the [person doing the monitoring] or through
13
him some third person. However, [in order to find such a case, one] needs to establish
factual circumstances which can justify such a suspicion.
The principles developed [above] hold independent of the fact whether [the statements]
enter the penal institution or leave it. Similarly, it does not matter whether the author or
recipient serves a final sentence or is detained while awaiting trial. Finally, the circle of
potential persons of confidence is not limited to spouses (*) or parents (*). Especially the
elaboration [in the decision referring to parents] show, that, from the function of the
protection of the personality [a command derives] to transfer [the protection] to similarly
close relations.
4. Reviewed [with the principles developed above] the challenged decisions do no
survive a constitutional review.
From a constitutional perspective it is not to be objected, that the [courts below] saw in
the letter of the petitioner a serious and factually totally unfounded insult of the officers
[in the penal institutions the petitioners brother was detained in]. The sentencing,
however, rests upon the assumption of the [courts below] that the monitoring of the
letters does away with the confidentiality of the statement because the author must be
aware, due to the monitoring, that his statement will gain the knowledge of third persons.
This is irreconcilable with the protection of the basic right to a private sphere from
Article 2.1. in relation with Article 1.1. of the Basic Law which supplements the right to
freedom of opinion. Ascertainments, according to which the confidentiality of the
statement [of the petitioner] had not been done away with just by the states monitoring
of letters but already by the petitioner herself, have not been made by the [courts below].
The ascertained facts also do not give an occasion for such an assumption.
II.
Because already the assessment of the letter as an insult deserving of criminal punishment
has to be objected [from a constitutional perspective], it is not necessary to test whether
also the use of the letter in the criminal trial violated basic rights of the petitioner.
[Signed by all eight Judges.]
The above translation requires editing.
India
THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION
OF ATROCITES) ACT 1989.
Need to locate relevant cases:
An Act to prevent the commission of offences of atrocities against the members of the
Scheduled castes and Scheduled tribes, to provide for Special Courts for the trial of such
offences.......
Sec 2 (a) " atrocity" means an offence punishable under Sec 3.
14
Sec. 3 Whoever not being a member of a Scheduled caste or a Scheduled Tribe
(i) forces a member of a Scheduled Caste or a Scheduled (hereinafter referred to as SC
&ST ) to drink or eat any inedible or obnoxious substance;
(ii) acts with intent to cause injury, insult or annoyance to any member of a SC or ST by
dumping excreta, waste matter, carcasses, or any other obnoxious substance in his
premises or neighborhood;
(iii) forcibly removes clothes from the person of a member of SC or ST or parades him
naked or with painted face or body or commits any similar act derogatory to human
dignity;
(x) intentionally insults or intimidates with intent to humiliate a member of a SC or ST in
any place within public view.......shall be punishable with imprisonment for a term which
shall not be less than six months but which may extend to five years ......
(2) Whoever not being a member of SC or ST (I) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely
that he will thereby cause, any member of SC or ST to be convicted of an offence which
is capital by the law for the time being in force shall be punished with imprisonment for
life; and if any innocent member of a SC or ST be convicted in consequence of such false
or fabricated evidence, the person who gives or fabricates such false evidence shall be
punished with death............
Sec 14 Special Court For the purpose of providing for speedy trial, the state government
may constitute a special court to try the offences in this Act......
Sec 21. Duty of the Government to take adequate measures to implement the Act
(i) the government shall provide adequate facilities, including legal aid, to the persons
subjected to atrocities to enable them to avail themselves of justice;
(iii) the provision for the economic and social rehabilitation of the victims of the
atrocities
NAMIBIA:
Right to respect of human dignity
Ex Parte Attorney-General: In re Corporal Punishment by Organs of State 1991
NR 178
Mahomed AJA:
15
Imposition of any sentence by any judicial or quasi judicial authority or directing
any corporal punishment upon any person is unlawful and in conflict with art 8 of
the constitution. Infliction of corporal punishment in government schools
pursuant to the existing code formulated by Ministry of Education or any other
direction by any other organ of government is likewise unconstitutional and in
conflict with art 8.
UNITED KINGDOM
Summary only:
No clear dignity law in UK. Reference in certain contexts:
Right of bodily integrity:
procedures performed on people eg circumcision; blood tests. Presumption against
procedures performed for non-therapeutic reasons: S v S 1972 AC 24 HL. Feldman: Civil
Liberties and Human Rights in England and Wales 1993: 159-60.
Children:
prima facie enjoy all rights as citizens. But as dependants are subject to certain authority
exercised by the responsible adults. Feldman 134-5. Test is ‘reasonableness’. Parent must
have justification for punishment which cannot be an assault: R v Dupperon 1985 WWR
369 CA.
Intimate Searches:
highly intrusive; prima facie a battery and invasion of privacy and interference with
bodily integrity: Police and Criminal Evidence Act 1984, s118(1). Must be specially
authorised on reasonable grounds by officer at least of rank of superintendent. Feldman
261.
Immigrants:
EC of HR held that UK immigration officials cannot treat non-English groups differently
from other non-English groups = degrading: Patel and others (The East African Asians) v
UK 1981 3 EHRR.
Cases require elaboration.
EUROPEAN COURT OF HUMAN RIGHTS
BOTTA v. ITALY (153/1996/772/973) 24 February 1998: Private life: includes
person’s physical and psychological integrity: lack of facilities for disabled people
at beaches
16
Italy – State’s failure to take measures to remedy omissions imputable to private bathing
establishments which prevented disabled people from gaining access to a beach and the
sea
I. ARTICLE 8 OF THE CONVENTION
Private life: includes person’s physical and psychological integrity - guarantee afforded
by Article 8 of Convention primarily intended to ensure development, without outside
interference, of personality of each individual in his relations with other human beings.
Applicant complained in substance of lack of action by State. Article 8: essential object to
protect individual against arbitrary interference by public authorities – does not merely
compel State to abstain from such interference: in addition to this negative undertaking
there may be positive obligations inherent in effective respect for private or family life.
These may involve adoption of measures designed to secure respect for private life even
in sphere of relations of individuals between themselves.
Concept of respect: not precisely defined – regard to be had to fair balance that has to be
struck between general interest and interests of the individual, while State has, in any
event, a margin of appreciation.
Court has held that a State has obligations of this type where it has found a direct and
immediate link between measures sought by an applicant and latter’s private and/or
family life.
Right asserted by applicant (to gain access to beach and sea at a place distant from his
normal place of residence during his holidays) concerned interpersonal relations of such
broad and indeterminate scope that there could be no conceivable direct link between
measures State was urged to take and applicant’s private life.
Conclusion: inapplicable (unanimously).
I. THE CIRCUMSTANCES OF THE CASE
8. Mr Botta, who was born in 1939 and lives in Trezzano sul Naviglio (Milan province),
is physically disabled.
9. In August 1990 he went on holiday to the seaside resort of Lido degli Estensi, near to
the town of Comacchio (Ferrara province) with a friend, who is also physically disabled.
There he discovered that the bathing establishments were not equipped with the facilities
needed to enable disabled people to gain access to the beach and the sea (particularly
special access ramps and specially equipped lavatories and washrooms), in breach of
Italian legislation, which required a clause obliging private beaches to facilitate the access
of disabled people to be added to the relevant concession contracts and made provision
for compliance to be enforced by the competent local authorities. According to
Comacchio District Council, the compulsory clause was, however, only added to
concession contracts signed after the adoption of the provisions concerned.
10. The applicant asserts that he was for a time able to gain access in his vehicle to certain
public beaches without facilities, but was later prevented from doing so because a barrier
had been erected across the entrance by order of the Ravenna harbour-master.
11. On 26 March 1991 the applicant sent a letter to the mayor of Comacchio asking him
to take the necessary measures to remedy the shortcomings noted the previous year. No
reply was received.
17
12. In August 1991 Mr Botta returned to Lido degli Estensi, where he found that none of
the measures requested had been implemented, although they were mandatory. He was
therefore obliged to ask the local coastal authority for permission to drive his vehicle onto
a public beach without facilities. He also wrote to various local bodies, receiving the
following replies: the president of the cooperative which ran the resort’s private beaches
informed him that the concession contracts did not stipulate any obligation to install the
facilities requested; the local coastal authority replied that it had to receive an official
request before it could authorise the construction of special access ramps on the beaches;
the mayor asserted that it was the private beaches’ responsibility to install the facilities in
question, but nevertheless gave the applicant permission to drive onto a public beach in
his vehicle.
In an undated memorandum the coastal authority gave him permission to drive onto a
public beach without facilities in his vehicle for a limited period expiring on 31 August
1991.
13. On 9 August 1991 the applicant decided to lodge a complaint with the carabinieri
against the Minister for Merchant Shipping, the Ravenna harbour-master and the mayor
and deputy mayor of Comacchio. He alleged that, by failing to take any steps whatsoever
to oblige the private beaches to install the facilities for disabled people prescribed by law
on pain of cancellation of their licences, these authorities had committed the offence of
omitting to perform an official duty (omissione d’atti d’ufficio), as defined in Article 328
of the Criminal Code.
On 20 December 1991 he asked the Ferrara public prosecutor’s office to inform him
where matters stood in the case.
On 5 May 1992 the public prosecutor’s office submitted that the proceedings should be
discontinued.
14. In an order of 12 May 1992 the judge responsible for preliminary investigations
(giudice per le indagini preliminari) attached to the Ferrara District Court ordered the
discontinuation of the proceedings on the ground that, having completed his inquiry, he
had not found any evidence that the offence defined in Article 328 of the Criminal Code
had been committed, given that the beaches’ concession contracts all contained a clause
which obliged bathing establishments to make the beaches accessible to disabled people
and to install at least one changing cubicle and one lavatory for their use.
On 1 September 1992 Mr Botta once again wrote to the Ferrara public prosecutor’s office
seeking information about the state of the proceedings.
On 16 September 1992 he was informed by telephone that the proceedings relating to his
complaint had been discontinued.
15. According to information supplied by the applicant and not contradicted by the
Government, although some of the private beaches in Lido degli Estensi have
subsequently installed changing cubicles and lavatories for disabled people, in July 1997
none of them had yet built a ramp designed to permit disabled people to gain access to the
beach and the sea. On 29 August 1997 Comacchio District Council informed the registry
of the Court of the adoption, on 11 August 1997, of the resort’s new improvements plan,
under which compliance with the law on bathing establishments had to be achieved by 30
April 1999 at the latest.
18
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
27. The applicant complained, firstly, of impairment of his private life and the
development of his personality resulting from the Italian State’s failure to take
appropriate measures to remedy the omissions imputable to the private bathing
establishments of Lido degli Estensi (Comacchio), namely the lack of lavatories and
ramps providing access to the sea for the use of disabled people. He relied on Article 8 of
the Convention, which provides:
"1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others."
He asserted that he was unable to enjoy a normal social life which would enable him to
participate in the life of the community and to exercise essential rights, such as his nonpecuniary personal rights, not because of interference by the State but on account of its
failure to discharge its positive obligations to adopt measures and to monitor compliance
with domestic provisions relating to private beaches.
By adopting Law no. 13 of 9 January 1989 and Law no. 104 of 5 February 1992, the
Italian State had taken on the obligation to guarantee disabled people full respect for their
human dignity, namely the right to freedom and independence, integration into the family,
education, employment and society. The State also, as in the present case, imposed
obligations on third parties and had a duty to enforce the law. It therefore had positive
obligations falling within the scope of Article 8 of the Convention.
Limiting the concept of private life to its affective aspects only would not be consonant
with the trend of the Court’s case-law, which was based on a pragmatic, common-sense
approach rather than a formalistic or purely legal one.
28. In the Commission’s view, the sphere of human relations at issue in the present case
concerned a particularly broad range of social relations. The rights asserted by the
applicant were social in character, concerning as they did participation by disabled people
in recreational and leisure activities associated with beaches, the scope of which went
beyond the concept of legal obligation inherent in the idea of "respect" for "private life"
contained in paragraph 1 of Article 8.
In that context fulfilment by States of their domestic or international legislative or
administrative obligations depended on a number of factors, in particular financial ones.
As States had a wide margin of appreciation regarding the choice of the means to be
employed to discharge the obligations set forth in the relevant legislation, the right
asserted by the applicant fell outside the scope of Article 8.
In any event, the social nature of the right concerned required more flexible protection
machinery, such as that set up under the European Social Charter. Article 8 was
accordingly inapplicable.
19
29. The Government agreed. Interpreting Article 8 so broadly as to include in States’
positive obligations the obligation to ensure the satisfactory development of each
individual’s recreational activities would amount to altering the meaning of the provision
in question to such an extent that it would be unrecognisable to those who had drafted it.
Once the door was open for a development of that type, it would be extremely difficult to
set limits. It would be necessary, for example, to take into consideration obstacles
resulting from the insufficient means of those who wished to take part in such activities.
That approach was likely to transform the Convention institutions into arbiters of the
social policies of the States party to the Convention, a role which did not form part of
either the object or the purpose of the Convention.
30. In the applicant’s submission, the Commission’s argument about the social character
of the right in question was unacceptably reductionist. The right did, admittedly, have
economic and social aspects and consequences, but it indubitably had all the features
required to bring it within the concept of a legal obligation inherent in respect for family
life.
The wide margin of appreciation to be left to the State according to the Commission,
which had referred in particular to available financial resources, should not be taken to
mean that arbitrary action by the State was justified or that it was legitimate to plead
economic difficulties.
In connection with the latter point, the applicant referred to the provisions of Law no.
104/92, Article 42 of which provided for funds to be made available for all work designed
to remove architectural obstacles. The fact that expenditure had not been properly
estimated was something for which private individuals could not be held to blame.
Lastly, the reference to the new version of the European Social Charter was all the more
unacceptable because it had not been opened for signature until 3 May 1996, that is four
years after the application had been lodged with the Commission.
31. The Court must determine whether the right asserted by Mr Botta falls within the
scope of the concept of "respect" for "private life" set forth in Article 8 of the Convention.
32. Private life, in the Court’s view, includes a person’s physical and psychological
integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to
ensure the development, without outside interference, of the personality of each
individual in his relations with other human beings (see, mutatis mutandis, the Niemietz
v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 33, § 29).
33. In the instant case the applicant complained in substance not of action but of a lack of
action by the State. While the essential object of Article 8 is to protect the individual
against arbitrary interference by the public authorities, it does not merely compel the State
to abstain from such interference: in addition to this negative undertaking, there may be
positive obligations inherent in effective respect for private or family life. These
obligations may involve the adoption of measures designed to secure respect for private
life even in the sphere of the relations of individuals between themselves (see the X and
Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23, and the
Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, p. 61, § 38).
However, the concept of respect is not precisely defined. In order to determine whether
such obligations exist, regard must be had to the fair balance that has to be struck
20
between the general interest and the interests of the individual, while the State has, in any
event, a margin of appreciation.
34. The Court has held that a State has obligations of this type where it has found a direct
and immediate link between the measures sought by an applicant and the latter’s private
and/or family life.
Thus, in the case of Airey v. Ireland (judgment of 9 October 1979, Series A no. 32), the
Court held that the applicant had been the victim of a violation of Article 8 on the ground
that under domestic law there was no system of legal aid in separation proceedings, which
directly affected her private and family life.
In the above-mentioned X and Y v. the Netherlands case, which concerned the rape of a
mentally handicapped person and accordingly related to her physical and psychological
integrity, the Court found that because of its shortcomings the Dutch Criminal Code had
not provided the person concerned with practical and effective protection (p. 14, § 30).
More recently, in the López Ostra v. Spain judgment (mutatis mutandis, 9 December
1994, Series A no. 303-C), in connection with the harmful effects of pollution caused by
the activity of a waste-water treatment plant situated near the applicant’s home, the Court
held that the respondent State had not succeeded in striking a fair balance between the
interest of the town of Lorca’s economic well-being – that of having a waste-treatment
plant – and the applicant’s effective enjoyment of her right to respect for her home and
her private and family life (p. 56, § 58).
Lastly, in the Guerra and Others v. Italy judgment of 19 February 1998 (mutatis mutandis,
Reports of Judgments and Decisions 1998-..), the Court held that the direct effect of the
toxic emissions from the Enichem factory on the applicants’ right to respect for their
private and family life meant that Article 8 was applicable (p. .., § 57). It decided that
Italy had breached that provision in that it had not communicated to the applicants
essential information that would have enabled them to assess the risks they and their
families might run if they continued to live in Manfredonia, a town particularly exposed
to danger in the event of an accident within the confines of the factory (p. .., § 60).
35. In the instant case, however, the right asserted by Mr Botta, namely the right to gain
access to the beach and the sea at a place distant from his normal place of residence
during his holidays, concerns interpersonal relations of such broad and indeterminate
scope that there can be no conceivable direct link between the measures the State was
urged to take in order to make good the omissions of the private bathing establishments
and the applicant’s private life.
Accordingly, Article 8 is not applicable.
Canada
Bell v. Ladas (1980), 1 C.H.R.R. D/155 (Ont. Bd.Inq.) [Eng. 6 pp.]: Sexual
advances by employer -- poisoned work environment -- Definition of sexual
harassment similar fact evidence -- Employer liability for supervisor
21
Board Defines Sexual Harassment
Keywords: SEXUAL HARASSMENT -- sexual advances by employer -- poisoned work environment -definition of sexual harassment -- EVIDENCE -- similar fact evidence -- LIABILITY -- employer liability
for supervisor
Summary: The Board of Inquiry dismisses two complaints of sexual harassment filed by Cherie Bell and
Anna Korczak against Ernest Ladas, the owner of the Flaming Steer Steak House Inc. in Niagara Falls,
Ontario. The Board of Inquiry finds that sexual harassment of employees by members of management
contravenes s. 4 of the Ontario Human Rights Code. An employee is discriminated against because of her
sex when an employer exacts some form of sexual compliance in exchange for the maintenance or
mprovement of financial or other workplace benefits. The evil to be remedied is the utilization of economic
power or authority so as to restrict a woman’s guaranteed and equal access to the workplace, and all of its
benefits, free from extraneous pressures having to do with the mere fact that she is a woman.
The Board of Inquiry finds further that the forms of prohibited conduct that are discriminatory run the
gamut from overt gender-based activity, such as coerced intercourse, unsolicited physical contact and
persistent propositions, to more subtle conduct, such as gender-based insults and taunting, which may
reasonably be perceived to create a negative psychological and emotional work environment. There is no
reason why the law, which reaches into the workplace to protect the work environment from physical or
chemical pollution or extremes of temperature, ought not to protect employees as well from negative
psychological and mental effects where adverse and gender directed conduct emanating from a
management hierarchy may reasonably be construed as a condition of employment. Where an officer has
engaged in prohibited conduct, the Board of Inquiry finds that the corporate respondent is liable under the
Code.
However, the Board of Inquiry declines to uphold the complaints on their merits. Cherie Bell alleged that
Ernest Ladas propositioned her when she came to pick up her first pay cheque, told her she "screwed too
much," offered her a "slow screw and a fast screw" when she came to the bar to fetch a drink called a Sloe
Screw for a customer, and fired her because she did not comply with the harassment. However, because of
inconsistencies in her evidence, the Board of Inquiry prefers the testimony of Ernest Ladas and finds his
denial of the harassment credible.
The second complainant, Anna Korczak alleged that Mr. Ladas slapped her "rear end" on more than one
occasion, made inquiries about her personal life, and invited her out for drinks and to have sex with him.
The Board of Inquiry finds that Ms. Korczak did not discharge the burden of proof to show that these events
occurred on a balance of probabilities.
The Board of Inquiry declines to treat the testimony of other women who stated that they were sexually
harassed by Ernest Ladas as similar fact evidence. Nor does it treat the evidence of Bell as similar fact
evidence in the case of Korczak since the conduct complained of is sufficiently different that it does not
create a pattern. The complaints are dismissed.
Shaw v. Levac Supply Ltd. (1990), 14 C.H.R.R. D/36 (Ont. Bd.Inq.) [Eng. 32
pp.]: Conduct denigrating sexuality, personal appearance, or vexatious conduct
constitutes sexual harassment -- verbal abuse and denigration
Comments Denigrating Sexuality Are Sexual Harassment
22
Keywords: SEXUAL HARASSMENT -- PERSONAL APPEARANCE -- conduct
denigrating sexuality, personal appearance, or vexatious conduct constitutes sexual
harassment -- verbal abuse and denigration -- poisoned work environment -- employer has
obligation to provide workplace free from harassment -- definition of sexual harassment - DAMAGES -- compensation for injury to dignity and self-respect – damages assessed
for sexual harassment -- LIABILITY -- vicarious liability
Summary: The Board of Inquiry finds that Carol Shaw was sexually harassed by a coworker and that her employer is liable for the harassment. Carol Shaw was harassed over
a period of fourteen years by a co-worker who constantly criticized her work, denigrated
her sexuality and degraded her as a woman. The Board of Inquiry finds that the most
common understanding of sexual harassment is conduct such as making passes, soliciting
sexual favours, sexual touching and the like. However, it finds that conduct which
denigrates a woman's sexuality or vexatious conduct which is directed at a woman
because of her sex also constitutes sexual harassment.
In this case, Carol Shaw was subjected to constant negative comment on her person
and her performance by a co-worker. Herb Robertson made fun of the way Ms. Shaw
walked and of her figure by saying "waddle, waddle" when she walked by, or "swish,
swish" to imitate the sound of her nylons rubbing against each other. He called her a "fat
cow" to another employee and made remarks which indicated that he believed that
women should be at home looking after their children, as his wife was.
The Board of Inquiry finds that Carol Shaw brought Herb Robertson's behaviour to the
attention of Roger Levac, who was in charge of operations for the company, on a number
of occasions over the course of her employment. Mr. Levac did nothing effective to stop
it and Ms. Shaw left her employment with Levac Supply. The Board finds Herb
Robertson, Roger Levac and Levac Supply Ltd. jointly and severally liable for the losses
arising from Ms. Shaw's harassment. It orders the respondents to pay Ms. Shaw $43,273
in compensation for lost wages, as well as $5,000 in general damages.
Bailey v. Anmore (Village) (1992), 19 C.H.R.R. D/369 (B.C.C.H.R.) [Eng. 11
pp.]: Degrading and Rude Behaviour Not Necessarily Sexual Harassment
Keywords: SEXUAL HARASSMENT -- sexual assault by supervisor -- verbal abuse
and denigration -- EVIDENCE -- credibility of witness – RETALIATION -- employment
terminated following filing of human rights complaint
Summary: The B.C. Council of Human Rights finds that Glennis Bailey was not
sexually harassed by her supervisor, Don Brown, when she was employed by the Village
of Anmore. Though the Council finds that Mr. Brown subjected Glennis Bailey to
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degrading, rude, and puerile behaviour and comments, some of which were sexual in their
content, it rules that this did not constitute sexual harassment within the meaning of s. 8
of the B.C. Human Rights Act because Mr. Brown was equally rude and demeaning in his
treatment of male employees. However, the Council finds that one reason for the
termination of Ms. Bailey's employment was the fact that she had filed, or intended to
file, a complaint alleging sexual harassment. Her termination thus violates s. 20 of the
Act which prohibits retaliation against any person for filing a complaint.
The Council rejects the argument of the respondent that because there was no
contravention of s. 8 of the Act, any compensation for the violation of s. 20 should be
token. There was considerable merit to Ms. Bailey's allegation. She was subjected to
severe stress because of her job situation and it is only because Brown treated males
equally badly that her sexual harassment complaint failed. Section 20 is intended to
protect not only those who are successful in their complaints but all those who choose to
exercise their rights. The right is to complain, not to complain successfully.
The Council orders the Village of Anmore to compensate Glennis Bailey for her full
wage loss and to pay her $2,000 as compensation for her humiliation.
Quebec (Public Curator) v. Syndicat national des employés de l'hôpital StFerdinand [1996] 3 S.C.R. 211: Personal dignity -- Illegal strikes by employees
of hospital for mentally disabled -- Trial judge concluding that patients suffered
prejudice in form of temporary discomfort -- Whether there was interference with
their right to personal dignity -- Meaning of "dignity"
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Evidence -- Class action -- Applicable rules of evidence -- Proof by presumptions of fact - Whether Code of Civil Procedure provisions relating to class actions have changed
rules of evidence applicable in civil matters.
Damages -- Moral prejudice -- Evaluation -- Role of functional approach in evaluating
moral prejudice in Quebec civil law -- Method of calculating moral damages.
Civil rights -- Personal inviolability -- Illegal strikes by employees of hospital for
mentally disabled -- Trial judge concluding that patients suffered prejudice in form of
temporary discomfort -- Whether there was interference with their right to personal
inviolability -- Meaning of "inviolability" -- Charter of Human Rights and Freedoms,
R.S.Q., c. C-12, s. 1.
Civil rights -- Personal dignity -- Illegal strikes by employees of hospital for mentally
disabled -- Trial judge concluding that patients suffered prejudice in form of temporary
discomfort -- Whether there was interference with their right to personal dignity -Meaning of "dignity" -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 4.
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Civil rights -- Personal dignity -- Remedy -- Exemplary damages -- Illegal strikes by
employees of hospital for mentally disabled -- Trial judge concluding that patients
suffered prejudice in form of temporary discomfort -- Interference with patients' dignity -Whether exemplary damages should be awarded -- Meaning of "unlawful and intentional
interference" -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 4, 49.
The unionized employees of a hospital for the mentally disabled participated in illegal
strikes. The Public Curator, acting on behalf of the patients in the hospital during the
strikes, instituted a class action against the appellants. The trial judge concluded that the
appellants had committed a civil fault by provoking, inciting or participating in the illegal
strikes and that the patients had suffered prejudice. After an exhaustive review of the
evidence, the judge concluded that the representative of the group covered by the class
action had the necessary capacity to suffer moral prejudice and that she had suffered
discomfort. With respect to the other members of the group, the judge noted that the
evidence established that they had suffered substantially the same prejudice as the group's
representative. The judge condemned the appellants to pay $1,750, as compensatory
damages, to each member of the group covered by the class action, with the exception of
the patients in the transit unit and the medical-surgical unit. He declined, however, to
award exemplary damages under the second paragraph of s. 49 of the Charter of Human
Rights and Freedoms since, in his view, the nature of the prejudice did not make this
remedy available. The Court of Appeal affirmed the trial judge's decision with respect to
compensatory damages. However, it ordered the appellants, jointly and severally, to pay
$200,000 to the patients as exemplary damages. The majority of the court concluded that
the appellants had unlawfully interfered with the rights to inviolability and dignity
guaranteed to the patients by ss. 1 and 4 of the Charter and that this interference had been
intentional within the meaning of the second paragraph of s. 49.
Held: The appeal should be dismissed.
(1) Rules of evidence in class actions
The provisions of Book Nine of the Code of Civil Procedure relating to class actions have
not changed the rules of evidence in civil matters in Quebec. Like the other rules of
evidence, proof by presumptions of fact, provided they are sufficiently serious, precise
and concordant, is therefore applicable to this type of action. Moreover, art. 1241
C.C.L.C. does not change the rules of evidence in relation to class actions. This provision
deals only with the consequence of the judgment on a class action in terms of the
presumption of res judicata.
In this case, it cannot be concluded that the trial judge relied on the statutory provisions
applicable to class actions to create a legal presumption of similarity in assessing the
moral prejudice suffered by the patients. Rather, he sought to find an element of damage
common to everyone, and only after reviewing the evidence as a whole did he find
enough evidence to be able to infer that there were serious, precise and concordant
presumptions that all the patients had at least suffered discomfort. Besides relying on
presumptions of fact, he also took into account the evidence as a whole, including the
testimony, inter alia that of expert witnesses, in reaching the conclusion that all the
elements of civil liability (fault, prejudice and causal connection) had been established on
the balance of probabilities. Since the trial judge committed no error of law and no error
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in the conclusions he drew from the evidence, the Court of Appeal was correct not to
intervene.
(2) Moral prejudice
Quebec civil law supports the conception that the right to compensation for moral
prejudice is not conditional on the victim's ability to profit or benefit from monetary
compensation. This objective characterization of moral prejudice is more consistent with
the fundamental principles of civil liability than the subjective conception. In Quebec, the
primary function of the rules of civil liability is to compensate for prejudice. This
objective requires that there be compensation for the loss suffered because of the
wrongful conduct, regardless of whether the victim is capable of enjoying the substitute
pleasures. In order to characterize the nature of the moral prejudice for purposes of
compensation, the purely subjective conception thus has no place in the civil law, since
the reason that damages may be recovered is not because the victim may benefit from
them, but rather because of the very fact that there is a moral prejudice. The victim's
condition or capacity to perceive are irrelevant in relation to the right to compensation for
the moral prejudice.
With respect to the evaluation of the moral prejudice, although the functional approach
does not apply in Quebec civil law to the determination of the right to moral damages, it
is nonetheless relevant, together with the conceptual and personal approaches, when it
comes to the calculation of such damages. In Quebec civil law, these three approaches to
calculating the amount necessary to compensate for moral prejudice apply jointly and
thereby encourage a personalized evaluation of the moral prejudice. With respect to the
calculation of compensation, the trial judge's decision was sound. He took into account a
panoply of factors that included all of the conceptual, personal and functional approaches,
and the quantum of the moral damages he awarded was the result of a meticulous
examination of the evidence. Since the appellants did not demonstrate any error in this
regard, the Court of Appeal rightly declined to intervene to vary the trial judgment with
respect to this head of damages.
(3) Exemplary damages
The prejudice in the nature of temporary discomfort suffered by the hospital's patients,
which the trial judge characterized as "minor psychological distress", does not amount to
interference with the right to personal inviolability guaranteed by s. 1 of the Charter. The
common meaning of the word "inviolability" suggests that the interference with that right
must leave some marks, some sequelae which, while not necessarily physical or
permanent, exceed a certain threshold. The interference must affect the victim's physical,
psychological or emotional equilibrium in something more than a fleeting manner. The
evidence does not establish in this case that the patients suffered any permanent prejudice
giving rise to psychological or medical sequelae.
Although the discomfort suffered by the patients was transient, however, it constituted
interference with the safeguard of their dignity, despite the fact that these patients might
have had no sense of modesty. The right to the safeguard of personal dignity guaranteed
in s. 4 of the Charter addresses interferences with the fundamental attributes of a human
being which violate the respect to which every person is entitled. The right to personal
dignity, unlike the concept of inviolability, does not require that there be permanent
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consequences in order for interference with that right to be found. In considering the
situation of the mentally disabled, the nature of the care that is normally provided to them
is of fundamental importance. The low level of awareness that some patients had of their
environment may undoubtedly influence their own conception of dignity, but when
dealing with a document such as the Charter, it is more important that we turn our
attention to an objective appreciation of dignity and what that requires in terms of the
necessary care and services. The numerous and varying inconveniences engendered by the
illegal strikes not only constituted a moral prejudice under the general rules of civil
liability, but also interfered with the right guaranteed by s. 4 of the Charter.
The second paragraph of s. 49 of the Charter provides that in case of unlawful and
intentional interference with a right recognized by the Charter, a tribunal may condemn
the person guilty of it to exemplary damages. There is unlawful interference with a right
protected by the Charter where the infringement of that right results from wrongful
conduct. A person's conduct will be characterized as wrongful if he or she violates a
standard of conduct considered reasonable in the circumstances under the general law or,
in the case of certain protected rights, a standard set out in the Charter itself. For
unlawful interference to be characterized as intentional, the result of the wrongful conduct
must be desired. There is thus unlawful and intentional interference within the meaning of
the second paragraph of s. 49 when the person who commits the unlawful interference has
a state of mind that implies a desire or intent to cause the consequences of his or her
wrongful conduct, or when that person acts with full knowledge of the immediate and
natural or at least extremely probable consequences that his or her conduct will cause.
This test is not as strict as specific intent, but it does go beyond simple negligence. In
addition to being consistent with the wording of s. 49, this interpretation of the concept of
"unlawful and intentional interference" is in keeping with the preventive and deterrent
role of exemplary damages, which suggests that only conduct the consequences of which
were either intended or known by the person who committed the unlawful interference,
and which therefore could have been avoided, should be punished by an award of such
damages. In this case, the Court of Appeal was correct in concluding that the interference
with the right to personal dignity was "unlawful" since the prejudice suffered by the
patients was caused by conduct in the nature of a fault within the meaning of art. 1053
C.C.L.C., and "intentional" because those responsible for it intended the consequences of
the fault they committed. The appellants backed the illegal strikes and, apparently, on the
evidence as a whole, orchestrated and incited them. The pressure that the appellants
wanted to bring to bear on the employer inevitably involved disrupting the services and
care normally provided to the hospital's patients, and necessarily involved intentional
interference with their dignity.
Even where unlawful and intentional interference exists, the award and the quantum of
exemplary damages remain discretionary. However, this discretion is not absolute. It is
guided by various factors that have been developed by the courts and are now codified in
art. 1621 C.C.Q. In this case, the Court of Appeal's decision to award exemplary damages
is consistent with the established criteria. With respect to the calculation of the
appropriate amount, since the Court of Appeal committed no error of principle, the
quantum of the joint and several award of exemplary damages must be upheld. The
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punitive and deterrent function of exemplary damages does not prevent the appellants
from being condemned jointly and severally to pay them.
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