On 7 July 2020, the European Court of Human Rights (ECtHR) rendered a decision in the case of Mahi v. Belgium (in French). This case is noteworthy because it once again sheds light on the duties and responsibilities that each and every one of us has in a democratic society. Indeed, it is often forgotten that, while the European Convention on Human Rights (ECHR) is a treaty of rights, both the text of the treaty and the case law of the Strasbourg Court clearly make reference to individual duties and responsibilities, as well. Keeping in mind the balance inherent to the human rights framework between, on the one hand, individual rights, and, on the other hand, individual duties and responsibilities, is important for the overall strength of that framework and, with it, the liberal-democratic idea itself, especially in a time when both seem to be questioned.
What are the facts of the case? Yacob Mahi, petitioner in the case, was a teacher of Islamic religion in a Brussels school that falls under the education system of the French Community (i.e., one of the federated entities in Belgium). Tensions arose in that school in the aftermath of the deadly attack on Charlie Hebdo in 2015. Among other things, a petition was launched against a teacher who had stood up for Charlie Hebdo, and a student who refused to sign the petition had become the victim of violence. Mahi was said to have been behind the petition.
Mahi responded to the allegations with an open letter. He also took a stand on the attack on Charlie Hebdo, on the one hand condemning ‘the abuses committed in the name of Islam’ and ‘the call for a law against blasphemy’, but, on the other hand, also stating that ‘any ridicule which does not take into account sensitivities and rules of politeness and which is intended to offend someone by mocking them, with the sole aim of making use of a right […] constitutes an abuse of freedom of expression’. Moreover, Mahi accused the media of disinformation, and spoke out about politicians without, however, identifying anyone in particular, or clarifying exactly what he blamed them for. He also wondered why the judicial authorities had done nothing to prevent the departure of young Belgians to Syria. In addition, he spoke out about homosexuality, which he considered ‘unnatural’ and about which he was ‘concerned’. Finally, Mahi also referred to an author condemned for Holocaust denial, whom he considered to be his spiritual teacher.
Duty of discretion
The Belgian Interfederal Center for Equal Opportunities and Opposition to Racism (Unia) held that Mahi’s statements did not exceed the limits of freedom of speech, and as such, had not violated anti-discrimination laws. It did, however, express concern about the fact that a teacher would have made such statements.
The Government of the French Community decided to transfer Mahi to a school some fifty kilometers away in the town of La Louvière as a disciplinary measure. Mahi appealed the decision, but this appeal was rejected by the Council of State. The Council of State ruled that the statements, taken as a whole, constituted a violation of the duty of discretion (‘devoir de réserve’) which, pursuant to articles 5 and 7 of the Royal Decree of 22 March 1969, is incumbent on teachers of French Community education. Mahi subsequently went to the European Court of Human Rights, citing among other things a violation of his freedom of expression (article 10 ECHR).
That Court ruled that Mahi’s transfer to another school did have a legal basis and a legitimate purpose. Subsequently, it considered whether the measure was necessary in a democratic society. Interestingly, in that assessment the Court explicitly referred to the ‘duties and responsibilities’ of individuals, as found in the second paragraph of Article 10 ECHR. The Court agreed with the Belgian Council of State that Mahi’s statements were incompatible with the duty of discretion incumbent on people working on behalf of the government (civil servants). In addition, the Court stated that the specific duties teachers are faced with also apply to a certain extent to their activities outside the school, as they can be considered a symbol of authority in the field of education to their pupils.
The Court held that the duty of discretion can also be violated when there is no question of inciting hatred or discrimination. To assess whether this is the case, the context – in this case the tensions following the attacks against Charlie Hebdo in Paris – must be taken into account. The fact, however, that the impugned statements were not made on a spontaneous whim, but, on the contrary, in writing and subsequently disseminated on a large scale, also had to be entered into the equation. Finally, the Court also found that the transfer to another school about 50 kilometers outside of Brussels, where Mahi could work the same number of hours as he had been before, was not disproportionate. The Court therefore unanimously rejected Mahi’s complaint of a violation as manifestly ill-founded.
Everyone has duties and responsibilities
The ‘duties and responsibilities’ in article 10 §2 ECHR are not merely reciprocal ‘human rights obligations’, such as the ‘duty to respect someone’s privacy’ as the flip side of the ‘right to privacy’. The logic of the Convention’s reference to ‘duties and responsibilities’ goes beyond this superficial observation. In a complex liberal-democratic society, i.e., a democratic society in which everyone’s fundamental rights are protected without discrimination, there are legitimate expectations about how we behave. Fulfilling those ‘duties and responsibilities’ is necessary for such a society to function. States can subsequently impose restrictions on individuals to enforce these duties and responsibilities. However, such restrictions must always meet the requirements of legality, legitimate purpose and necessity in a democratic society.
The European Court of Human Rights often refers to professional roles and functions in the context of the ‘duties and responsibilities’ of Article 10 ECHR. For example, it held that teachers may not abuse their position to indoctrinate pupils (ECHR, Vogt t. Germany (Grand Chamber), §60). In addition to case law about teachers and civil servants, there is also ample case law regarding the duties and responsibilities of, for example, judges, lawyers, police officers, politicians, military personnel and journalists. The reason for this is obvious: anyone who carries out a profession performs a socially recognised and somewhat defined role or function, and society must be able to trust that this role or function is properly performed.
However, the Court has also indicated that the idea of individual duties and responsibilities is not limited to people exercising a certain profession. On the contrary, everyone has duties and responsibilities, with a view to maintaining a liberal-democratic society (see, e.g., ECHR, Stoll t. Switzerland (Grand Chamber), §102). Depending on the context, freedom of expression can therefore be restricted accordingly. Indeed, anyone who wants to enjoy human rights must also be willing to bear the responsibility for making possible the society in which those rights are protected.
Michaël Merrigan is a junior affiliated researcher at the University of Leuven Centre for Public Law. He is a member of Rights! editorial board and you can follow his work @M_Merrigan An earlier (Dutch) version of this article appeared in De Juristenkrant and on the Leuven Blog for Public Law.