Ordre Public in the decision-making of the European Court of Human Rights

In modern legal systems, ensuring a balance between human rights and the legitimate interests of the State is one of the most important and, at the same time, most complex issues in the application of law. In particular, within the framework of the European Convention on Human Rights, maintaining this balance requires the establishment of a fair equilibrium between the protection of the fundamental rights of the individual and the public interests and security of the State.

When assessing the maintenance of this balance, the European Court of Human Rights refers to public order in its decision-making. This public order constitutes fundamental legal principles reflected in the Court’s case-law developed over many years. They ensure a consistent, coherent and objective approach in the ECtHR’s judgments in different cases.

The public order is an exceptional circumstance permits the refusal to apply the foreign law designated by a conflict-of-laws rule (i.e. a rule determining the law of which country is to be applied).

Where the application of the legal rules of a foreign country is contrary to the fundamental principles of the Constitution, primary legislation and morality of the State applying the law (for example, Azerbaijan), the court may refuse to apply such foreign law and instead apply its own national law. This constitutes a mechanism for safeguarding the State’s fundamental values.

Certain provisions of the European Convention on Human Rights, such as Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression), and Article 11 (freedom of assembly and association), permit restrictions to be imposed on those freedoms. However, such restrictions may only be imposed for the achievement of certain legitimate aims, one of which is the “protection of public order”.

In the judgments of the ECtHR, “protection of public order” (public order) refers to the peaceful, orderly and lawful functioning of society. This primarily encompasses areas such as the prevention of crime, the suppression of disorder and the maintenance of public peace and order in general. The public order is primarily aimed at protecting the fundamental and foundational legal principles and values of society and the State.

Public Security, on the other hand, is a more specific and practical aim, more frequently employed in the limitation clauses of the Convention, directed towards ensuring physical security, public order and stability.

For example, in the field of private international law, where the foreign law applicable in a particular case is contrary to the country’s “public order”, the court may refuse to apply such law.

This constitutes a protective mechanism aimed at safeguarding the sovereignty of the State and its national legal values.

Accordingly, in national law, public order serves as a boundary against the application of foreign legal rules that are contrary to the fundamental constitutional principles of the country, public morality, or the stability of the legal order.

Although within the framework of the European Convention on Human Rights, the term “public order” is not equated with the concepts of “public order”, “public safety” and “public security”, it serves a functionally similar purpose. Under the ECHR, this concept primarily operates as a legitimate ground for restricting human rights.

Accordingly, within the framework of the ECHR, “public order” no longer primarily concerns the rejection of foreign law, but rather serves as a legal basis expressing the legitimate interests of the State in safeguarding public stability. In both contexts, the term serves the fundamental purpose of law - ensuring a balance between individual freedoms and the public interest - although its mode of application and legal function differ.

The ECtHR gives the term “public order” a meaning based on narrow, autonomous and democratic principles, thereby minimising the possibility of States imposing subjective restrictions. In the narrow sense, the ECtHR interprets “public order” restrictively in accordance with the objectives of the Convention. The Court does not permit States to impose restrictions under this heading in response to any form of social concern. In the autonomous sense, the ECtHR does not rely on what States regard as “public order” under their domestic law. The Court provides its own independent interpretation of the term within the framework of the Convention itself. The reliance on democratic principles refers to the criterion of “necessity in a democratic society”, which is of central importance when imposing a restriction. A restriction may only be imposed proportionately where there is a pressing social need. The minimisation of the possibility of States imposing subjective restrictions is a consequence of the other three approaches. Through strict scrutiny and restrictive interpretation, the ECtHR prevents States from easily infringing human rights for political purposes.

Freedom of expression (Article 10) in the case of Handyside v. the United Kingdom concerned the publisher’s punishment for publishing a book entitled “Little Red Schoolbook”.

Handyside v. the United Kingdom (Application no. 5493/72) was a case decided by the European Court of Human Rights in 1976. The judgment contains the following famous statement:

Freedom of expression... applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. (Paragraph 49 of the judgment)

The national court considered this to be contrary to morality and “public order”. The ECtHR established that the concept of morality varies from country to country (Margin of Appreciation). However, the State must be able to demonstrate that the restriction serves a “pressing social need”. The Court demonstrated that freedom of expression also extends to information that is “offensive, shocking or disturbing”.

Applying the “margin of appreciation”, the Court held, by thirteen votes to one, that the interference with Handyside’s freedom of expression was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society; consequently, there had been no violation of Article 10 of the ECHR. Importantly, this case contributed significantly to the development of the margin of appreciation doctrine. The Court reasoned:

By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them. [1]

Freedom of assembly and association (Article 11) - Djavit An v. Turkey.

The applicant alleged that, in 1994, he was informed in writing that permission to cross had been refused on the grounds of “security reasons, public interest and anti-government propaganda”. These restrictions also interfered with his freedom of peaceful assembly and freedom of association (Article 11). The ECtHR unanimously held that Article 11 (freedom of assembly and association) had been violated. [2]

This judgment prevents States from prohibiting mass gatherings merely based on anticipated disturbances by invoking “public order”.

The ECtHR accepts that restrictions based on “public order” are permissible only where they are of an urgent nature (for example, where there is a risk of violence).

The Court examines, in each case, whether the restriction imposed by the State is proportionate to the “public order” aim pursued.

Accordingly, it should be emphasised that the Court plays a protective role against the abuse of the concept of “public order”.

The Russian Federation was one of the States that demonstrated the strongest resistance to executing ECtHR judgments. In particular, in the “Yukos” case (OAO Neftyanaya Kompaniya Yukos v. Russia), the applicant alleged that the measures were politically motivated and violated the right to property (ECtHR, Article 1 of Protocol No. 1). [3] The Russian Constitutional Court relied on the principle of the “Supremacy of the Constitution” in refusing to recognise the ECtHR’s judgment concerning the payment of a substantial amount of compensation. The Russian Constitutional Court held that ECtHR judgments could not be executed if they were contrary to the “general legal principles” enshrined in the Russian Constitution or to “constitutional identity”. [4]

The position of the German Constitutional Court is more moderate, but is based on the same underlying dispute, namely the supremacy of national constitutional principles.

The Solange Doctrine (“Solange I” and “Solange II”) arose in connection with the application of European Union (EU) law and European Convention law. Unlike the Russian Constitutional Court, there was no direct refusal to execute ECtHR judgments; however, in principle, the Constitutional Court reserves such authority to itself.

Initially, the German Constitutional Court stated that, until European law reached a level of protection equivalent to that of the fundamental rights guaranteed by the German Constitution, the Constitutional Court retained the power to review European legal acts from the perspective of national fundamental rights. (1974) Although this principle was primarily directed at EU decisions, its underlying essence is the same. If a decision of an international body violates the fundamental principles protected by the Constitution of the State (i.e. the national “public order”), the national authorities may refuse to recognise it. [5]

Subsequently, in its 1986 Solange II decision, Germany softened its position. The Court stated that it would refrain from conducting such a review for as long as the level of protection of fundamental rights within the European system remained satisfactory. [6]

In concluding our present analysis of the function of the concept of “public order” (ordre public) in Private International Law, namely its function of permitting a national court to refuse to apply the law of a foreign country, it is necessary to once again emphasise the essence of this mechanism and the conflict it creates.

In this context, “public order” constitutes the final line of defence employed by a sovereign State to protect its legal distinctiveness (identity), constitutional foundations, and fundamental moral and social values. It is a sovereign instrument preventing foreign laws or decisions that unacceptably violate a State’s fundamental principles from acquiring legal effect within its national territory.

However, this power contains a significant inherent tension. On the one hand, it safeguards national values; on the other hand, it threatens legal certainty and predictability, which are of paramount importance in international legal relations. If national courts interpret the term “public order” broadly and subjectively, this may make the recognition of international treaties more difficult and create chaos in interstate trade and other relations.

Consequently, in Private International Law, the term “public order” should operate neither as an obstacle nor as a power, but rather as a balancing mechanism. The effectiveness of this mechanism depends on States applying it on the basis of limited and objective criteria (such as a violation of the Constitution). Only such an approach can ensure the necessary compromise between safeguarding national sovereignty and ensuring international legal cooperation. In other words, “public order” serves to keep the national legal system open insofar as the fundamental principles of international law are not violated.

References

[1] Case of Handyside v. The United Kingdom (Application no. 5493/72) https://hudoc.echr.coe.int/eng?i=001-57499

[2] Case of Djavit An v. Turkey (Application no. 20652/92) https://hudoc.echr.coe.int/fre?i=001-60953

[3] Case of OAO Neftyanaya Kompaniya Yukos v. Russia (Application no. 14902/04) https://hudoc.echr.coe.int/eng?i=001-145730

[4] Decision of the Constitutional Court of the Russian Federation dated 14 July 2015 http://publication.pravo.gov.ru/document/0001201507170018?index=1

[5] “Solange I” Decision (BVerfGE 37, 271 2 BvL 52/71 Solange I-Beschluß, 29 May 1974) https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=588

[6] “Solange II” Decision (BVerfGE 73, 339 2 BvR 197/83 Solange II-decision, 22 October 1986) https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=572