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Public Morals and the European Convention on Human Rights

Published online by Cambridge University Press:  02 October 2014

Roberto Perrone
Roberto Perrone*
Affiliation:
PhD in Constitutional Law, University of Ferrara, Italy; [email protected].
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Abstract

The protection of ‘morals’ appears frequently as a limitation on the exercise of fundamental rights, both in international covenants and in constitutional charters. The European Convention for the Protection of Human Rights is not an exception, and ‘public morals’ may be called upon to justify the restriction of several important rights granted by the Convention, such as freedom of expression or the right to respect for private and family life. To avoid arbitrary restrictions of these rights it is important to understand the meaning of this general clause. This article aims to suggest a reading of the ‘public morals’ clause that singles out its scope and its boundaries.

Keywords

public moralsEuropean Convention on Human Rights (ECHR)personal autonomyhuman dignity
Type
Articles
Information
Israel Law Review , Volume 47 , Issue 3 , November 2014 , pp. 361 - 378
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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References

1 On the concept of boni mores in Roman law see, for example, Biondi, Biondo, Il Diritto Romano Cristiano, vol 1 (Giuffré 1952)Google Scholar 47 ff; Plescia, Joseph, ‘The Development of the Doctrine of Boni Mores in Roman Law’ (1987) 34 Revue Internationale des Droits de l'Antiquité 265Google Scholar; Baldacci, Eloisa, ‘Buoni costumi. Diritto romano’ in Sgreccia, Elio and Tarantino, Antonio (eds), Enciclopedia di bioetica e scienza giuridica (ESI 2009) 435.Google Scholar

2 Biondi (n 1) 48 (author's translation).

3 On the enforcement of morals and traditions in the liberal state of the nineteenth century see, for example, Friedman, Lawrence M, The Republic of Choice (Harvard University Press 1990) 30Google Scholar ff; Novak, William J, The People's Welfare (University of North Carolina Press 1996) 149Google Scholar ff.

4 For example, within the countries of the European Union (EU) (therefore excluding those that adhere to the European Council, but not to the EU) I can mention: Constitution of the Netherlands (1815), art 7(3); Constitution of Luxembourg (1868), art 88; Constitution of Latvia (1922), art 116; Constitution of Ireland (1937), arts 40(6)(i) and 44(2)(2); Constitution of Italy (1948), arts 19 and 21(6); Basic Law of the Federal Republic of Germany (1949), art 2(1); Constitution of Denmark (1953), art 67; Constitution of Cyprus (1960), arts 15, 18(6), 19(3), 20(1), 21(3), 23(3), 25(2), 30(2), 87(3), 134(1) and 154; Constitution of Malta (1964), arts 38(2)(a), 39(4)(c)(ii), 40(3), 41(2)(a)(i), 42(2)(a)(i) and 44(3); Constitution of Greece (1975), arts 5(1), 13(2) and 93(2); Constitution of Portugal (1976), art 26; Constitution of Bulgaria (1991), arts 37(2)(e) and 41(1); Constitution of Romania (1991), arts 26(2), 30(7) and 53(1), in which it is worth noting the express reference to the protection of the ‘morality’ of minors (art 49(3)); Charter of Fundamental Rights and Basic Freedoms (1991), arts 16(4), 17(4) and 19(2), declared an integral part of the Constitution of the Czech Republic (1992), art 3; Constitution of the Slovak Republic (1992), arts 24(4), 26(4) and 28(2); Constitution of Estonia (1992), arts 23(3), 26, 40(3), 45 and 47; Constitution of Lithuania (1992), arts 25(3), 26(4), 36(2) and 43; Constitution of Belgium (coordinated text of 1994), art 148(1); Constitution of Poland (1997), arts 31(3), 45(2) and 53(5).

5 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171. The Covenant mentions ‘public morals’ in arts 12(3), 14(1), 18(3), 19(3), 21 and 22(2).

6 Convention on the Rights of the Child (entered into force 2 September 1990) 1577 UNTS 3.The expression ‘public morals’ is referred to in arts 10(2), 13(2)(b), 14(3) and 15(2).

7 Charter of Fundamental Rights of the European Union [2012] OJ C 326/02.

8 European Union, Consolidated version of the Treaty on the Functioning of the European Union [2008] OJ C 115/01.

9 European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222.

10 Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing Certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto (entered into force 2 May 1968) ETS 46, art 2(3), as amended by Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby (entered into force 11 May 1994) ETS 155.

11 Handyside v United Kingdom, App no 5493/72, ECtHR, 7 December 1976.

12 ibid para 48.

13 The margin of appreciation is the discretion that a judicial body (in this case the European Court of Human Rights) acknowledges the member states have in assessing the prerequisites to apply certain measures. On the margin of appreciation doctrine see Yourow, Howard Charles, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Kluwer 1996)Google Scholar and Arai-Takahashi, Yutaka, The Margin of Appreciation Theory and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002)Google Scholar; for Italian doctrine see Sapienza, Rosario, ‘Sul margine d'apprezzamento statale nel sistema della Convenzione europea dei diritti dell'uomo’ (1991) 74 Rivista di diritto internazionale 571Google Scholar.

14 Handyside (n 11) para 48.

15 See, for example, Müller and Others v Switzerland, App no 10737/84, ECtHR, 24 May 1988, para 35; Open Door and Dublin Well Woman v Ireland, App no 14235/88, ECtHR, 29 October 1992, para 68; Otto Preminger Institut v Austria, App no 13470/87, ECtHR, 20 September 1994, para 50; Wingrove v United Kingdom, App no 17419/90, ECtHR, 25 November 1996, para 58; Perrin v United Kingdom, App no 5446/03, ECtHR, 18 October 2005; Akdaş v Turkey, App no 41056/04, ECtHR, 16 February 2010, para 27.

16 Dudgeon v United Kingdom, App no 7525/76, ECtHR, 22 October 1981.

17 Alekseyev v Russia, App nos 4916/07, 25924/08 and 14599/09, ECtHR, 21 October 2010.

18 ibid para 59.

19 Stübing v Germany, App no 43547/08, ECtHR, 12 April 2012.

20 Open Door (n 15) para 63. It is likely, however, that in this case the Court fell back on the ‘public morals’ clause in order not to link state measures with the ‘protection of rights of others’ clause and not to address the issue of whether the foetus can be qualified as an ‘other’ deserving protection. Indeed, the judges admitted that, having relied on the ‘public morals clause’, ‘it is not necessary in the light of this conclusion to decide whether the term ‘others’ under Article 10 para 2 extends to the unborn'.

21 IA v Turkey, App no 42571/98, ECtHR, 13 September 2005, para 22.

22 Aydin Tatlav v Turkey, App no 50692/99, ECtHR, 2 May 2006, para 21.

23 Gündüz v Turkey, App no 35071/97, ECtHR, 4 December 2012, para 28.

24 Erbakan v Turkey, App no 59405/00, ECtHR, 6 July 2006, para 46.

25 Mouvement Raëlien Suisse v Switzerland, App no 16354/06, ECtHR, 13 July 2012, especially para 72, which upholds Mouvement Raëlien Suisse v Switzerland, App no 16354/06, ECtHR, 13 January 2011.

26 Friend v United Kingdom, App nos 16072/06 and 27809/08, ECtHR, 24 November 2009.

27 ibid para 50.

28 Handyside (n 11) para 48.

29 See van Dijk, Pieter and van Hoof, Godefridus JH, Theory and Practice of the European Convention on Human Rights (Kluwer Law and Taxation 1990)Google Scholar 585 ff.

30 ibid 585. See also Benvenisti, Eyal, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1998–99) 31 New York University Journal of International Law & Politics 852Google Scholar, regarding the necessity that the court should set universal standards of judgment for member states.

31 See Ruggeri, Antonio and Spadaro, Antonino, Lineamenti di giustizia costituzionale (4th edn, Giappichelli 2009)Google Scholar 9 ff.

32 On the distinction between the definition of a general clause and the inclusion of cases within the scope of an (already defined) general clause see, for example, under Italian doctrine, Federico Pedrini, ‘Clausole generali e Costituzione. Una (prima) mappa concettuale’ [2009] Forum di Quaderni Costituzionali, 19 November 2009, para 5, http://www.forumcostituzionale.it/site/images/stories/pdf/documenti_forum/paper/0151_pedrini.pdf.

33 On occasions the members of the Court themselves have held that the Court should envisage common standards concerning the extension of ECHR rights and their limitations: see, for example, Judge Zekia's concurring opinion in The Sunday Times v United Kingdom, App no 6538/74, ECtHR, 26 April 1979, Pt 2: ‘Whenever it considers it reasonable and feasible, this Court should work out a uniform international European standard for the enjoyment of the rights and freedoms included in the Convention. This could be done gradually when the occasion arises and after giving the appropriate full consideration to national legal systems.’

34 See Morrison, Clovis C, ‘Margin of Appreciation in Human Rights Law’ (1973) 6 Revue des droits de l'homme 263, 285–86Google Scholar; van Dijk and van Hoof (n 29) 601, who write: ‘Indeed, also in our view Article 19, which reflects the structure of the European Convention, leaves room for no other conclusion that in the final analysis only the Stasbourg organs are competent to conduct the weighing of interests involved in the Convention. Leaving this task to the national authorities is eventually going to undermine the Convention's entire structure. Granting the extreme latitude inherent in the above-mentioned wide version of the margin of appreciation doctrine – and exemplified by the Irish Government's claim in the Norris case – would reduce the Strasbourg supervisory machinery to a mechanism for rubberstamping almost anything a Government wants.’

35 Remember the ‘pressing social need’ formula employed by the Court on several occasions (eg Handyside (n 11) para 48) to assess the ‘necessity in a democratic society’ of a state measure which restricts a right.

36 On Dudgeon (n 16) see, for example, Repetto, Giorgio, ‘I diritti all'identità sessuale e il ruolo della morale pubblica’ in Vespaziani, Alberto (ed), Diritti fondamentali europei. Casi e problemi di diritto costituzionale comparato (Giappichelli 2008)Google Scholar 105.

37 See Norris v Ireland, App no 10581/83, ECtHR, 26 October 1988; Modinos v Cyprus, App no 15070/89, ECtHR, 22 April 1993; ADT v United Kingdom, App no 35765/97, ECtHR, 31 July 2000. Among decisions and reports of the European Commission of Human Rights see Norris v Ireland (1985) 44 DR 132; Modinos v Cyprus (1990) 67 DR 295; Marangos v Cyprus, App no 31106/96 (Commission Decision, 20 May 1997).

38 Offences against the Person Act (1861), ss 61 and 62, and Criminal Law Amendment Act (1885), s 11. These provisions have since been repealed.

39 Dudgeon (n 16) paras 40–41.

40 ibid paras 42–46.

41 The Court indeed held that the legislation was viable to protect also the ‘rights of others’ and, more precisely, the position of the weakest members of society, who could be offended by homosexual practices – see Dudgeon (n 16) para 47: ‘The Court recognises that one of the purposes of the legislation is to afford safeguards for vulnerable members of the society, such as the young, against the consequences of homosexual practices.’

42 ibid para 47.

43 ibid para 46.

44 ibid para 56.

45 ibid para 57.

46 ibid para 57.

47 ibid paras 60–61.

48 ibid para 60. As for the tolerance displayed by the authorities in Northern Ireland, the Court stressed that ‘no evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has been any public demand for strict enforcement of the law’.

49 See Benvenisti (n 30) 850.

50 For an overview of the problem, see Steven Wheatley, ‘Minorities under the ECHR and the Construction of a “Democratic Society”’ [2007] Public Law 770.

51 Benvenisti (n 30) 850.

52 On the idea of a counter-majoritarian role of the ECtHR, see Mancini, Susanna, ‘The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty’ (2010) 6 European Constitutional Law Review 6CrossRefGoogle Scholar, commenting on the Lautsi ruling (Lautsi v Italy, App no 30814/06, ECtHR, 3 November 2009; the ruling was followed by a Grand Chamber decision: Lautsi and Others v Italy, App no 30814/06, ECtHR, 18 March 2011.

53 Dworkin, Ronald, Taking Rights Seriously (Harvard University Press 1978)Google Scholar 248.

54 This clarification has been provided, for example, by the Italian Constitutional Court with regard to obscenity. The Court indeed affirmed that ‘it is not possible to attribute that offensive attitude [of the good mores] to acts or objects which, albeit provided with an obscene character in themselves, do not go beyond the private sphere and do not represent a means of communication towards an indeterminate number of people, or else they are aimed at reaching the other parties with such methods and precautions, which grant the necessary privacy and reasonably prevent the danger of the offence to non-consenting third parties or to the community as a whole’: Constitutional Court, No 368 (9 July 1992), [1992] Giurisprudenza costituzionale 2935; Considerato in diritto [Conclusions of Law], para 2 (author's translation). See also Constitutional Court, No 9 (4 February 1965), [1965] Giurisprudenza costituzionale 61; Considerato in diritto, para 5, where we read that ‘[t]he moral law lives within individual conscience and, if it is understood in this way, it cannot be disciplined by the law. Whenever the law mentions morality, it refers to public morality, that is to say those rules of coexistence and of conduct, which need to be observed in a civilized society’.

55 On the ‘dialogue’ between national and European courts (including the ECtHR) about human rights protection see, for example, under Italian doctrine, the contributions contained in Panunzio, Sergio (ed), I diritti fondamentali e le Corti in Europa (Jovene 2005)Google Scholar; Cosio, Roberto and Foglia, Raffaele (eds), Il diritto europeo nel dialogo delle Corti (Giuffré 2013)Google Scholar. On the broader idea of a ‘global community of transnational adjudication’ in general see, for example, Slaughter, Anne-Marie, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191Google Scholar.

56 Constitutional Court, No 293 (11 July 2000), [2000] Giurisprudenza costituzionale 2239.

57 Law No 47 of 8 February 1948, art 15.

58 Constitutional Court, No 293 (n 56) 2244; Considerato in diritto, para 3.

59 ibid para 3. This link between ‘dignity’ and ‘public morality’ has a precedent in the jurisprudence of the Canadian Supreme Court concerning obscenity: see R v Butler [1992] 1 SCR 452; the majority opinion, drafted by Justice Sopinka, sustains the limitation on freedom of expression granted by the Canadian Charter of Rights and Freedoms, s 2, by means of a ban on obscene publications, when the targeted materials display the participants in a ‘degrading or dehumanizing’ way. In the judgment it is stated that ‘[t]he avoidance of harm caused to society through attitudinal changes certainly qualifies as a fundamental conception of morality. It is well grounded, since the harm takes the form of violations of the principles of human equality and dignity’. The decision of the Canadian Supreme Court is examined briefly by Christopher Nowlin, ‘The Protection of Morals under the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2002) 24 Human Rights Quarterly 264, 276 ff.

60 I borrow this concept from John Rawls' works (Rawls, John, ‘The Idea of an Overlapping Consensus’ (1987) 7 Oxford Journal of Legal Studies 1CrossRefGoogle Scholar; Rawls, John, A Theory of Justice (revised edn, Oxford University Press 1999) 340Google Scholar; and Rawls, John, Political Liberalism (Columbia University Press 1993)Google Scholar 133 ff). However, Rawls' idea of an overlapping consensus on a conception of justice is quite complex, as it involves a deep consensus on a conception of justice as opposed to a mere constitutional consensus on some procedural constitutional principles (such as that proposed by Kurt Baier: see Baier, Kurt, ‘Justice and the Aims of Political Philosophy’ (1989) 99 Ethics 771CrossRefGoogle Scholar). I call upon the concept of overlapping consensus to a simpler extent, in its meaning of an agreement on a notion, that of human dignity, which can be accepted by all (reasonable) forces in a pluralistic society.

61 For a survey of world constitutions which contain references to human dignity see McCrudden, Christopher, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655, 664–65CrossRefGoogle Scholar, 672–73.

62 In the Italian Constitution human dignity is mentioned in arts 3(1) (‘All citizens possess equal social dignity’), 41(2) (‘[private entrepreneurship] cannot contravene social utility or endanger public safety, or liberty, or human dignity’) and 36(1) (‘The worker is entitled to a salary proportional to the quantity and quality of his work, and in any case sufficient to grant him and his family a free and dignified life’).

63 Human dignity plays a very important role in the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), in which it is stated (art 1(1)) that ‘[h]uman dignity shall be inviolable. To respect and protect it shall be the duty of all state authority’ (‘Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt’). It is therefore held among scholars that human dignity is not only the basis of the fundamental rights listed in the Basic Law, but is also the central value of the constitutional order itself: see, for example, Eberle, Edward J, ‘Human Dignity, Privacy, and Personality in German and American Constitutional Law’ (1997) 4 Utah Law Review, 963, 971–73.Google Scholar

64 For a survey of international texts and conventions which include references to human dignity see McCrudden (n 61) 665 ff.

65 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (1948) 71. The Preamble reads: ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world … Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom’. The Declaration refers to ‘dignity’ in arts 1, 22, 23 n (3).

66 n 5 above. The Preamble reads: ‘The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person …’ (emphasis added), while art 10(1) states: ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’ (emphasis added).

67 n 7 above.

68 On the Charter of Fundamental Rights of the European Union see, for example, Resta, Giorgio, ‘La disponibilità dei diritti e i limiti della dignità (note a margine della Carta dei diritti)’ (2002) 6 Rivista di diritto civile 801Google Scholar; Sacco, Francesco, ‘Note sulla dignità umana nel “diritto costituzionale europeo”’ in Panunzio, Sergio (ed), I diritti fondamentali e le Corti in Europa (Jovene 2005) 585Google Scholar; Politi, Fabrizio, ‘Il rispetto della dignità umana nell'ordinamento europeo’ in Mangiameli, Stelio (ed), L'ordinamento europeo. I principi dell'Unione (Giuffré 2006) 43Google Scholar; Di Ciommo, Mario, Dignità umana e Stato costituzionale. La dignità umana nel costituzionalismo europeo, nella Costituzione italiana e nelle giurisprudenze europee (Passigli 2010)Google Scholar 201 ff.

69 See ECHR (n 9) Preamble, paras 1–3: ‘The governments’ signatory hereto, being members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared.'

70 The Preamble to the Protocol reads: ‘The member States of the Council of Europe signatory hereto, Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings.’

71 See Pretty v United Kingdom, App no 2346/02, ECtHR, 29 April 2002, para 65; see also Christine Goodwin v United Kingdom, App no 28957/95, ECtHR, 11 July 2002, para 90; and Jehovah's Witnesses of Moscow and Others v Russia, App no 302/02, ECtHR, 10 June 2010, para 135. For a survey of the cases in which the Commission and the Court mentioned ‘human dignity’ see Di Ciommo (n 68) 233 ff.

72 Human dignity, as I have already pointed out, is referred to in the Preamble to the ECHR and appears in the Preamble to the 13th Additional Protocol to the Convention, while the expression ‘public morals’ is present among the operative provisions of the Convention.

73 I borrow the expression ‘dimension of dignity’ from Dworkin, Ronald, Is Democracy Possible Here? Principles for a New Political Debate (Princeton University Press 2006)Google Scholar.

74 For a more thorough analysis, and for further references on the concept of ‘human dignity’ see, for example, Perrone, Roberto, ‘Il concetto di “public morals” nella giurisprudenza della Corte europea dei diritti umani: spunti per l'elaborazione di una “moralità pubblica” europea – Parte I’ (2013) 1 Diritti umani e diritto internazionale 31Google Scholar, and Perrone, Roberto, ‘Il concetto di “public morals” nella giurisprudenza della Corte europea dei diritti umani: spunti per l'elaborazione di una “moralità pubblica” europea – Parte II’ (2013) 2 Diritti umani e diritto internazionale 265Google Scholar.

75 Among the many suggested by the doctrine, see the definition of personal autonomy suggested by Raz, Joseph, The Morality of Freedom (Oxford University Press 1988) 369CrossRefGoogle Scholar, according to whom the concept ‘transcends the conceptual point that personal well-being is partly determined by success in willingly endorsed pursuits and holds the free choice of goals and relations as an essential ingredient of individual well-being’. For a discussion of various aspects of personal autonomy see Feinberg, Joel, The Moral Limits of the Criminal Law, Vol 3: Harm to Self (Oxford University Press 1989)CrossRefGoogle Scholar 27 ff.

76 Sometimes the theorisation of personal autonomy in the sense just specified is credited to Kant, Immanuel, Metaphisics of Morals (first published 1797, Cambridge University Press 1996)Google Scholar, as held, for example, by Feldman, David, ‘Human Dignity as a Legal Value – Part I’ [1999] Public Law 685Google Scholar; and by Pasquino, Teresa, Autodeterminazione e dignità della morte (Cedam 2009) 42–43Google Scholar. It has been observed, however, that Kant's moral autonomy is a concept that differs from personal autonomy and that in Kantian theory ‘authorship reduced itself to a vanishing point as it allowed only one set of principles which people can rationally legislate and they are the same for all. Nobody can escape their rule simply by being irrational and refusing to accept them. Personal autonomy, by contrast, is essentially about the freedom of persons to choose their own lives’: Raz (n 75) 370. See also Feinberg (n 75) 35 ff. According to some (see, for example, Taylor, Robert S, ‘Kantian Personal Autonomy’ (2005) 33 Political Theory 602CrossRefGoogle Scholar) the step towards a more relativistic vision of autonomy (or, according to a certain terminology, ‘personal autonomy’ in the proper sense) is to be ascribed to Romantic liberalism, and namely to John Stuart Mill's ‘free development of individuality’: see Mill, John Stuart, On Liberty (first published 1859, Pearson Longman 2007Google Scholar). But see also the concept of ‘self-government’ envisioned by Richard Price, Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America (first published 1776) 9, http://www.oll.libertyfund.org; see also Humboldt, Wilhelm von, The Limits of State Action (first published 1792, Cambridge University Press 1969) 16–21.Google Scholar

77 See, for example, Clapham, Andrew, Human Rights Obligations of Non-State Actors (Oxford University Press 2006) 545–46CrossRefGoogle Scholar, who singles out four aspects which constitute respect for human dignity; among them there is ‘the assurance of the possibility for individual choice and the conditions for “each individual's self-fulfilment”, autonomy, or self-realization’. Under Italian doctrine see, for example, Pasquino (n 76) 50 ff; and Resta, Giorgio, ‘La dignità’ in Rodotà, Stefano and Zatti, Paolo (eds), Trattato di biodiritto: Ambito e fonti del biodiritto (Giuffré 2010)Google Scholar 288 ff.

78 Dworkin (n 73) 35 ff and 85; but see also his position in Dworkin (n 53) 391 ff, regarding the idea that the state should treat people with ‘equal concern and respect’ and that individual liberties should not be restricted because the majority thinks some individuals are entitled to less concern because of their life choices. On this issue see also Letsas, George, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press 2007) 110CrossRefGoogle Scholar, 121–22 ff.

79 Pretty (n 71) para 61.

80 See Sørensen and Rasmussen v Denmark, App nos 52562/99 and 52620/99, ECtHR, 11 January 2006, para 54, where we read that ‘the notion of personal autonomy is an important principle underlying the interpretation of the Convention guarantees’; the Court confirmed this statement in Vördur Olafsson v Iceland, App no 20161/06, ECtHR, 27 April 2010, para 46; both cases concerned freedom of assembly granted by art 11 ECHR. On this issue see Nelleke R Koffeman, ‘(The Right to) Personal Autonomy in the Case Law of the European Court of Human Rights’ (2010) 5, https://openaccess.leidenuniv.nl/handle/1887/15890.

81 Jehovah's Witnesses of Moscow v Russia (n 71) para 135, in which the judges affirm that ‘the very essence of the Convention is respect for human dignity and human freedom and the notions of self-determination and personal autonomy are important principles underlying the interpretation of its guarantees’.

82 Cossey v United Kingdom, App no 10843/84, ECtHR, 27 September 1990, dissenting opinion of Judge Martens, para 2(7); the case concerned the position of transsexuals under the British legal system.

83 Sheffield and Horsham v United Kingdom, App nos 22885/93 and 23390/94, ECtHR, 30 July 1998, separate opinion of Judge van Dijk, para 5.

84 It is to be noted that even liberal theorists allow some forms of paternalism when the individual is not of sound mind: see, for example, Feinberg (n 75) 12 ff, who makes clear that when the person is not able to consent freely and capably to a certain type of conduct, it is incorrect to talk of ‘paternalism’ (even of ‘soft paternalism’) in the event of prohibition of that conduct.

85 From this perspective, the adjective ‘public’ in the phrase ‘public morals’ does not simply mean that the morals are ‘of the community’, as opposed to being of an individual nature, but also that they are not private and somehow affect the community by involving the public sphere. Of course, it is not easy to draw a precise line between the ‘public’ and ‘private’ sphere, and the issue would obviously need more in-depth analyis. In my opinion, however, the word ‘private’ here encompasses two aspects: one objective, one subjective. The objective aspect concerns the spatial dimension of the conduct; it includes only actions performed in a place in which the actor can decide who is allowed to enter and witnessing these actions is blocked to all non-consenting people. The subjective dimension concerns the parties involved in the conduct, which remains ‘private’ only until unwilling people are forced to take part in it, to assist with it, or to suffer its consequences.

86 See Sacco (n 68) 585 ff.

87 This position has ancient roots, dating back to Stoic philosophy, and it was advocated in the Roman world by Marcus Tullius Cicero in his treatise De Officiis, in which the expression ‘dignity’ is used for the first time. The idea of an intrinsic human dignity was taken up during the Middle Ages by Christian philosophers, who saw the distinguishing feature of man in the fact that he is created in God's image and in his capacity of reason and free will; the idea was greatly emphasised later during the Renaissance period by authors such as Giannozzo Manetti and Pico della Mirandola. It is the philosopher Immanuel Kant, however, who is the major contributor to the concept of human dignity in the history of ideas. In fact, some even consider him to be ‘the father of the modern concept of human dignity’: see Bognetti, Giovanni, ‘The Concept of Human Dignity in European and US Constitutionalism’ in Nolte, Georg (ed), European and US Constitutionalism (Cambridge University Press 2005) 89Google Scholar. For a brief, yet accurate, analysis of Kantian thought regarding human dignity see Vincenti, Umberto, Diritti e dignità umana (Laterza 2009)Google Scholar 27 ff. For an overview of the concept of human dignity in the history of philosophic thought see Sacco (n 68) 585 ff, and McCrudden (n 61) 656 ff.

88 See, for example, Rolla, Giancarlo, ‘Dignità’ in Flores, Marcello, Groppi, Tania and Mazzeschi, Riccardo Pisillo (eds), Dizionario dei diritti umani (Utet 2007) 305Google Scholar: ‘We can affirm that the constitutional principle of respect for human persons is the anthropological premise of the democratic and social state, as it affirms, in relationships within society and between society and the state, a culture inspired by rules of coexistence grounded on reciprocal tolerance and respect’ (author's translation). In the jurisprudence of the ECtHR see, for example, Erbakan v Turkey (n 24) para 56, where we read that ‘la Cour souligne que la tolérance et le respect de l’égale dignité de tous les êtres humains constituent le fondement d'une société démocratique et pluraliste'; or Gündüz v Turkey (n 23) para 40, where the statement is confirmed.

89 See, for example, Häberle, Peter, ‘La dignità umana come fondamento della comunità statale’ in Häberle, Peter, Cultura dei diritti e diritti della cultura nello spazio costituzionale europeo (Giuffré 2003) 1Google Scholar; Hofmann, Hasso, ‘La promessa della dignità umana’ (1999) 76 Rivista internazionale di filosofia del diritto 620Google Scholar.

90 See, for example, McCrudden (n 61) 679, who includes the ‘relational claim’ among the elements that form the ‘minimum core’ of the concept of human dignity, on which there seems to be a certain consensus among interpreters; see also Rolla (n 88) 306, according to whom ‘the constitutional acknowledgement of dignity needs to be considered also under the relational aspect. In that dimension it is not sufficient that people are treated with dignity; it is also necessary that all of them are treated with equal dignity and respect’ (author's translation).

91 See Rolla (n 88) 306 (author's translation).

92 We can therefore agree with the Court in Erbakan v Turkey (n 24) and Gündüz v Turkey (n 23) when it recognised that the state measures against hate speech were aimed also at protecting ‘public morals’.