Tag Archives: ECHR

October 27, 2020 · 19:28

Freedom to insult

That is the stage that we see reopen an hour ago on Reuters. The article ‘Saudi Arabia condemns cartoons offending Prophet Mohammad’ (at https://www.reuters.com/article/us-france-security-boycott-saudi/saudi-arabia-condemns-cartoons-offending-prophet-mohammad-idUSKBN27C0FE), which pretty much repeats my view given in ‘Creation of doubt’ (at https://lawlordtobe.com/2020/10/18/creation-of-doubt/) almost 10 days ago. Even as the BBC gives us ‘France targets radical Islam amid row with Turkey’ (at https://www.bbc.com/news/world-europe-54692802), the larger issue is avoided by almost all. In a stage where we see ‘freedom of expression’ versus ‘disrespecting religion’ how can this ever be right? We see it in Hedbo in their view of christian values and in this there is no real setting, there is no doctrine against an image of Jesus, or an image of cardinals or the pope. Yet there is a clear directive on images of the prophet Mohammed, and Islam is quite outspoken of that part and that is ignored again and again.

The Reuters article gives us “Freedom of expression and culture should be a beacon of respect, tolerance and peace that rejects practices and acts which generate hatred, violence and extremism and are contrary to coexistence”, yet we see a lack thereof by the teacher Samuel Paty, in this I believe that the action against him were wrong, yet I wonder what drove a teacher to intentionally insult Islam, yet the media is driving around that question, driving around it by well over a mile. In this the BBC gives us “The government believes the response cannot only be about law enforcement. They also need to manage social networks and associations, because this tragic case shed light on a whole network which spreads hate speeches within the population. The system needs changing”, an interesting quote, yet if we look at ‘a whole network which spreads hate speeches within the population’, yet that applies to a schoolteacher as well as the person who beheaded that teacher, and that part is largely missing. And by the time we get to “Marine Le Pen has also cast the peaceful public expression of Islam as a threat to French national identity”, in this it is not about “peaceful public expression of Islam”, it is the intentional disrespect of Islam that is the larger part here, and ever as some state that this is the need of Macron to win a reelection, the stage of intentionally insulting religion has a much larger stage all over Europe, and as far as I can tell the big newscasters are all in silence there, they will skate around the subject and most of them are doing just that.

Even as the Guardian gives us yesterday ‘Macron’s clash with Islam sends jolt through France’s long debate about secularism’ (at https://www.theguardian.com/world/2020/oct/26/macrons-clash-with-islam-sends-jolt-through-frances-long-debate-about-secularism) we get a set stage, and as such we need to look at that stage.

First there is secularism, which means “indifference to or rejection or exclusion of religion and religious considerations”, as such we need to see “rejection of religious consideration” when it is set against ‘insulting religion’. In an age of discrimination laws where some might accept “The European Court of Human Rights (ECHR) ruled on Thursday that insulting Islam’s Prophet Mohammed is not covered by freedom of expression” (source: Al Arabiya), the stage is not that clear as France rejects the Blasphemy Law, as such France is in a different pickle, yet the stage of ‘insulting religion’, and until that part is dealt with, the stage remains and might actually get worse.  So whilst we all accept and see that beheading a teacher is wrong, no one is wondering why a teacher is allowed to openly insult religion, insult Islam. Even as some papers give us “some of them caricatures of the prophet Muhammad, during a history lesson about freedom of speech and freedom of conscience”, I would have had the same stage in 2015, I protested like others Je suis Charlie, yet at that point I did not know why the action was taken. I believe that the protest was valid, but the lack of validity that goes with openly insulting religion is not addressed, not by any news paper. Why is that?

Now that I know that images of the prophet Mohammed are taboo, why would a teacher repeat the same insult? If it truly was about freedom of expression, why not use the christian examples (we christians do not object to this) and refer in that same lesson that Islam has specific rules on idolisation, yet the papers and plenty of other sources steer clear of that part, I wonder why?

It is clear that there is a gap in secularism, as such we need to take heed on how we openly insult the religions around us, why do this, what is there to gain? 

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March 6, 2015 · 12:47

Consent, a complex simplicity

There is an article in the Guardian, some will think it to be a decent piece, but I have an issue with it. There are all kinds of issues in the article, I cannot tell whether it was real, it did not feel as real. Whether it is or not is not really the issue. Yet there is an issue with it. Perhaps it is just me, but that issue is important, because the story touches on several issues, one that is close to my heart, as I was a witness for over a decade, unable to stop what had happened. Only to know, that he fled in fear, because one day, that one day that he saw me, the real me , it scared him all the way to South Africa, where he died of a Pneumonia, what a shame they likely got his prescribed anti-biotic dosage wrong, it must have made it worse. I had a great party celebrating his demise (seriously!).

The story by Monica Tan starts with a title ‘My boyfriend ‘sort-of’ raped me. But I didn’t break up with him‘ (at http://www.theguardian.com/commentisfree/2015/mar/05/my-boyfriend-sort-of-raped-me-and-i-didnt-even-break-up-with-him). My very first objection, there is no ‘sort-of’ it either was or it was not. The story as it is written is a mere introduction to a case that is not mentioned here. The case was ‘R (on the application of F) v The DPP [2013] EWHC 945 (Admin)‘, Here we see a review of the CPS as it has decided initially not to prosecute the husband. There was a realistic prospect of this case not resulting in conviction, the High Court took steps to order the CPS to look into the decision in this case. The issue before the High Court was whether ejaculation without consent could transform an incident of consensual intercourse into rape.

The Sexual Offences Act 2003 gives us in Section 1:

(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person
(B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents

Yet when we look at the definitions of consent we see at S75(3)

“Reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began“, the crux is that ejaculation comes after the consent of the act. Which explains the actions of the CPS, yet I was not alone looking at this. This is not a new case and Olivia Stiles, a trainee solicitor (in those days) at Kingsley Napley wrote this: “Penetration is a continuing act and so consent can be withdrawn even after penetration has begun and this will transform an act that begins as consensual intercourse into rape. Levitt was troubled by the facts of this case insofar as it was not clear at what point the intervener should have ceased to have intercourse with the applicant. Levitt’s view was that if the intervener embarked upon the act knowing he would ejaculate inside her against her wishes then it was arguable that he knew she did not consent. However, Levitt felt that as a matter of evidence it would be impossible to prove that it had not been a spontaneous decision made at the point of ejaculation“, Olivia’s article is good to keep next to the actual case, as for me, My issue is (as I see it) stated in S76. Here we see:

76 Conclusive presumptions about consent
(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act

(2) The circumstances are that—
(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

So, she objected to the relevant act, she did NOT consent!

Even though it would be very hard to prove that the situation as such existed, there is a criminal event in play.

The article then continues with a reference to the Julian Assange sex issue of 2010, which is exactly what happened in ‘R (on the application of F) v The DPP [2013] EWHC 945 (Admin)‘. Yet here her story goes south in a bad way, she writes: “It was not rape, but my reaction was too involuntary, and its intensity too high, to say that nothing bad happened. Something happened. And it had the whiff of rape”. No! It either is, or it is not and the events as prescribed add up to non-consensual sex, making it rape, assault by penetration or causing a person to engage in sexual activity without consent. The last one could land you in prison for life!

This all blends with the issue I have here. The quote “There is nothing more dangerous than shutting down public debate around sexual assault and domestic violence with a dismissive “lock the perpetrators up and throw away the key”. Such violence is rife in our society“. You see, some harsh changes are needed in the legislative sphere, it needed to be done yesterday and so far the law has been too soft as I see it. Domestic violence is more than a killer. When we look at the LWA (at http://www.lwa.org.uk/), we see that it accounts for 16% of all violent crimes and that it costs the public £23 billion per annum. These numbers might sound nice (or horrible), but that is not what this is about.

There needs to be much stronger legislation in regards to domestic violence. As I see it (and as I wrote before, in my article ‘Cleaning house!‘ on July 1st 2014). It is my firm believe that Article 3 of the ECHR should state:

“ARTICLE 3, Prohibition of torture
1. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
2. Domestic violence will be regarded as inhuman and degrading treatment of a person and is as such subject to local criminal law“

Until a larger operation makes clear case in a legal way attacking domestic violence, making it a capital crime, a massive portion of the population remains at risk. So in my view, the article by Monica Tan is an issue on several fronts.

The quotes “Now that I’ve taken a small sip at the cup of rape” and “This is not my story of rape. But it is a story with rape-ish qualities” makes me object loudly. As I see it, she never took a sip of anything. Either she was subjected to rape or she was not. It is not to be trivialised in any way. Monica found a case that was an issue in legal terms. Even though the law tries to be protective, it was flawed. The CPS states “Consent can be withdrawn at any time during sexual activity and each time activity occurs“, I am all for that however, WHY does the Sexual Offences Act 2003 not clearly states this? The issues in the caser as mentioned earlier, the writing by Olivia Stiles showed this and above all, the fact that the article ‘CPS and police focus on consent at first joint National Rape Conference‘, written on the 28th of January 2015 discusses this (at http://www.cps.gov.uk/news/latest_news/cps_and_police_focus_on_consent_at_first_joint_national_rape_conference/), should be sustenance for discussion.

Monica Tan has now mixed two issues, issues that are clearly linked, but remain separate. The law is so bend on the sexual crime issues, making it all murkier, and again more powerful legislation needed to deal with domestic abuse falls behind again. I personally feel that if we can effectively lower domestic violence, it would also impact sexual offences as a whole. I personally witnessed as a kid for many years how my mother was beaten to near death again and again. I was too young and too late to protect her, but in the end I danced on my father’s grave (I did it to the Shaggy song ‘it wasn’t me’) in 2002.

As I personally see it, Monica Tan found an interesting case, added a picture of a woman looking distressed in bed added emotions and got a story out there. The legal ramifications on consent are interesting, but that is all, interesting! The issue of consent stays, and is still debated largely. I personally feel that taking the CPS event as a centre piece, illuminating that consent remains an issue would have been a lot better. You see, the heart of the matter was a clearly stated in the CPS article in 70 words: “Director of Public Prosecutions Alison Saunders said: “For too long society has blamed rape victims for confusing the issue of consent – by drinking or dressing provocatively for example – but it is not they who are confused, it is society itself and we must challenge that. Consent to sexual activity is not a grey area – in law it is clearly defined and must be given fully and freely” and guess what, domestic violence is NEVER EVER done with consent. There is always a transgressor and a victim!

That part must be dealt with, it should have been done so decades ago. If that had been done, than perhaps my mother might have been around to share in the pride, when I was added to the roll of attorneys, it was not meant to be!

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July 1, 2014 · 11:44

Cleaning house!

This issue has been in the back of my head for some time. It was 2011 when this happened. The ruling hit the news (and the most colourful version was in the Daily Mail as per usual), where a rapist could not get deported because he was entitled to a family life. The article angered me and to some extent, I was then and I am still now on the side of the Daily Mail approach.

Why are criminals granted a lot more freedoms then their victims?

The more preposterous part is: “This is despite him not having a wife, long-term partner or children in the UK“, so what family life? He could try to get one in Nigeria for all I care.

The convention can be found here: http://www.echr.coe.int/Documents/Convention_ENG.pdf

The actual text: “ARTICLE 8 Right to respect for private and family life, 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 well being 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.”

It sounds nice enough, but it is time for some tough love, so I recommend adding the following:

“3. In case of conviction of a serious crime, that nation can decide to ignore rule 1, providing a connection to a long term partner and the existence of biological off spring, born in that nation, not criminally conceived has been established.”

So, we got rid of the rapist, if the mother is a pro-life woman, that will not protect him and moreover, he cannot hide behind an adoption either. Whether this is altered for the UK or it is accepted within the EEC as a whole is of course the crux. It is also time to stop tailoring from a weak point of view. Yes, at this point, a Human Rights point of view is a weak view (I accept that many disagree here)!

Let’s be clear here. I am all for human rights, but these rights also come with responsibilities and accountability, without these two rights pretty much go out of the window. It should also be clear that if a nation independently decides to not enforce paragraph 3, then this is fine too as I added “that nation can decide“, I am all for the right to choose and Like some should not judge the UK, the UK should not judge France, Germany or the Netherlands.

We are not done yet. There is still Article 12 to consider. We can’t have criminals ‘suddenly’ fall in love and get hitched and therefor avoid deportation (where applicable), hence the following would change

“ARTICLE 12 Right to marry, Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right“.

Would change into:

“ARTICLE 12 Right to marry,
1. Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right
2. The right to marry is temporary postponed if one or both persons have been deprived of his/her liberty by arrest or detention, until 6 months after release and was not been deported because of these events
3. Paragraph 2 will not be valid, if a court has ordered the release of the involved parties due to non-lawful detention“.

We keep number three there, as there is always a chance a person was convicted innocently and as such; we must definitely protect their rights too, as I stated we will give all quarter to those who abided by law as we should.

So, it took me almost 45 minutes to get to these conclusions after going over certain papers. The question becomes why these steps had not been made before? Well, let’s take a look at the Guardian (at http://www.theguardian.com/law/2013/dec/22/britain-european-court-human-rights). Here we see another view when we consider the following paragraph:

“Grayling said last week the ECHR did not ‘make this country a better place’. David Cameron has said the court risks becoming a glorified ‘small claims court’ buried under a mountain of ‘trivial’ claims , and suggested Britain could withdraw from the convention to ‘keep our country safe’. The home secretary, Theresa May, has pledged the party’s next manifesto will promise to scrap the Human Rights Act, which makes the convention enforceable in Britain”

I am not sure I can agree with the Home Secretary there. I see her point, but it took me only 45 minutes to alter the convention into something a lot less hassle, without actually changing that much. Those who come to Europe, fighting for a better life, not resorting to crime can still do that. My issue is that the rape victim, who was 13 at the time seems to have fallen of the view of the world (which might be good for her), yet in the dozens upon dozens of documents trying to protect the rapist, how much concern was given to the victim of his crime?

This is at the heart of my reasoning. Some judges talk a good talk, but then they seem to refuse to walk the walk (if it pleases the court and with all due respect). Consider the paper ‘Women in an unsecure world‘ (at http://www.unicef.org/emerg/files/women_insecure_world.pdf). A paper edited by Marie Vlachova and Lea Biason. If we are TRULY going to do anything to make their future safe, then we must begin in our own country. By making the consequence of transgression so high, that considering it will no longer be an option, that is the point where we all move forward and we can slowly start to actually eradicate the violence against women. I will not and cannot state that I have a true solution there, or that my solution will work. The issues are not overly complex, but it is a problem that is massively larger than most realise (including me), I just believe that if we send a strong signal that those transgressors will never be opted any life in any land of opportunity, we might, just might start to turn the tide a little. Is that not at the heart of Humanitarian rights too? If not, then what is Article 14 doing in the ECHR in the first place.

The only part that is laughable in the earlier mentioned PDF is the following statement “The Russian Government estimates that 14,000 women were killed by their partners or relatives in 1999, yet the country still has no law specifically addressing domestic violence“, the ‘comical‘ side there is that the UK did not have a serious option until the ‘Domestic Violence, Crime and Victims Act 2004’, I am not ignoring the ‘Family Law Act 1996’, yet the issue remains if we see the data (at http://www.womensaid.org.uk/domestic_violence_topic.asp?section=0001000100220041) that apparently the UK faces 1 call on domestic violence every minute. So, it is not just a Russian issue, the more data I see, the more that part should be stated as a global problem, with the Russian terminal numbers being a mere outlier in this entire debacle.

If we accept that not all women call for help, then there is a massive problem and governments all over the Commonwealth will need to make some clear, visible and drastic changes. When we start seeing newscasts on how immigrants have been evicted because of violence against women, how long until the local male population starts to realise that their number is up too?

This view is only amplified after seeing this article (at http://www.theguardian.com/society/2014/jun/08/police-fear-rise-domestic-violence-world-cup), is this for real? I wonder if a name and shame option would work. You know, we take his picture and place poster sized pictures close to ‘his’ watering holes. I wonder how happy such a person would feel in the local pub when they all knew what he was (apart from being an absolute wanker).

In several regards Theresa May was correct, the ECHR is a problem, but she was in my humble opinion incorrect to think that this issue was just in the UK, the Netherlands has numbers that indicate that violence against women is a lot higher there, or is it? Research seemed to indicate that Dutch women are more likely to report these crimes with the police, which makes the violence against women in the UK a lot higher than expected (at http://www.rtlnieuws.nl/nieuws/binnenland/geweld-tegen-vrouwen-nederland-een-stuk-hoger-dan-eu). Is that last part true? Without better data I cannot tell, but the chance that 4 out of 10 women are under direct threat of violence sickens me to my stomach, which makes the ECHR a larger joke then we are willing to admit to.

I think altering (best), or rejecting it (not that great an option) could be the next step, however, not doing anything should no longer be any option, not in the UK and not anywhere in the EEC, or anywhere else for that matter. Should we go after immigrants first? That is of course a valid question too. I think it is, as stated before, when these transgressors realise that crime gets you deported, a clear signal is given and not just in the UK either. I believe that once these events start, the signal is given all over Europe that a person is welcome as long as they abide by the law. There is of course the question where to add the bite we need. If too much is added to the ECHR, the bigger the chance that we create loopholes because of it and that makes any act or law bill toothless. The strongest bite is found in simplicity (as I see it). In that regard I would like to add something to Article 3 of the ECHR, changing it into:

“ARTICLE 3, Prohibition of torture
1. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
2. Domestic violence will be regarded as inhuman and degrading treatment of a person and is as such subject to local criminal law.“

So, now that Domestic Violence is set on the same scope as torture. How soon until the local population realises that the ‘game’ is up and this kind of violence will get them into jail, out of house and home, an automatic granted divorce to the victim with all rights given to the victim, hence the victim gets the house, the children and what else and those who regarded domestic violence as an option would get the short end of every stick. I am willing to bet that the face of domestic violence is changed within a year after the courts start handing out these verdicts.

It would be nice to see such a change in mentality and I will (again) humbly accept my knighthood and cottage (especially as I concocted a solution after breakfast and before lunch).

I do agree that the solution is not that simple, but giving these victims additional protection with real teeth is likely a much better approach then has been attempted this far. Knowing that the other approach has not worked, is it not time to start opting for a more direct approach?

 

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