Documente Academic
Documente Profesional
Documente Cultură
Claim 2
Submitted by:
EH 309
Submitted to:
List of Abbreviations 2
Index of Authorities 3
Preliminary Issues 9
Arguments on Merits 12
A. Ragnar Lodbrok. 13
List of Abbreviations
1
HRC Human Rights Commission
Index of Authorities
2
ICCPR International Convention on Civil and
3
Special Rapporteur for Freedom of
Expression of the Inter-American
Commission on Human Rights (2017)
accessed last May 8, 2019 at
http://www.oas.org
4
Bible Believers v.Wayne Bible Believers v. Wayne Country
2015).
(CCPR/C/51/D/458/1991)
(August 5, 2010).
Aroon Purie & Others v. State Aroon Purie & Others v. State of
2007).
5
Books, Dictionaries and Internet Sources
6
However, difficulties arose when the areas designated for the planting
of the Plume trees were currently being occupied by Andrian immigrants
feeling the effects of global warming. The Baspian government then rounded
up the Andrians from their tents and sent them back to Andria where they
died from either starvation or diseases.
During the celebrations of the Baspian festival, 'In and Out Boradway'
under the leadership of Ragnar Lodbrok performed a stereotypical show that
depicts the culture of the Andrians, both good and bad. Ragnar Lodbrok
along with his performers were then arrested and charged under the Anti-
Discrimination Act.
When they were released on bail, they found out that Daybreak News
Chronicle (DNC), a newspaper, produced cartoons showing Ragnar Lodbrok
being dragged off the stage with Baspian Gods laughing and pointing at him.
Ragnar Lodbrok and a few other leaders tried to get the police and the court
to arrest the cartoonists and owner of DNC. The Baspian High Court held
that such depictions were within the bounds of freedom of expression.
In an interview in the local radio station, Ragnar Lodbrok lambasted
both DNC and the President of Baspia. After the interview, Ragnar Lodbrok
and those accompanying him were arrested for insulting the President under
the Public Order Act which criminalizes subversive statements against the
person of the President.
Baspian Rights Organization (BRO) then filed a case against Baspia
in the Corona Human Rights Court.
Summary of Arguments
7
2. Applicant places emphasis that the law serves to protect the rights
of the people without prejudice; that the accused has been treated
unfairly in violation of the general principle of equality under the law;
that the court was impartial and bias upon the deliberation of the
charges imposed upon the accused.
Preliminary Issues
It is so stated that the Corona Human Rights Court can apply the
Corona Human Rights Convention and United Nations human rights treaties
and states which ratified the treaty of the United Nations are legally bound
by it, while states that did not are neither bound by the treaty obligations or
entitled to invoke those obligations against other state parties.
Similar to the admissibility and requirements of the Corona Human
Rights Court to the Optional Protocol of the International Convention of
Civil and Political Rights, it follows that:
The Committee shall not consider any communication from an
individual unless it has ascertained that:
(a) The same matter is not being examined under another
procedure of international investigation or settlement;
8
(b) The individual has exhausted all available domestic
remedies. This shall not be the rule where the application of the
remedies is unreasonably prolonged1.
Applicant manifests that the case in question is being filed exclusively
in the Corona Human Rights Convention and that it is not under
investigation by any other international court other than that of the Corona
Human Rights Court and is therefore within the rules of Section A on the
admissibility of the case.
Applicant submits that it has exhausted all the available domestic
remedies by asserting the fact that the accused up to this day from the time
of his arrest still remains in custody due to the constant postponement of the
case by the High Court of Baspia.
In further compliance with the requisites under the rules for individual
complaint procedures2,we submit that that the present case is ripe for
admissibility due to the violations of the freedoms invoked having falled
squarely under Articles 9 (deprivation of liberty and undue delay) and 19
(freedom of expression) of the ICCPR. The complaint is substantiated
sufficiently by the testimonies given by the victims themselves and copies of
the applicable laws and treaties applicable to the said case.
The incidents happened after the ratification of Baspia of the ICCPR
which includes the herein complaints mechanism.
1
Optional Protocol to the International Covenant on Civil and Political Rights, Article
V §12 (March 23, 1976).
2
Individual Complaint Procedures, United Nations Office of the High Commissioner
on Human Rights 2013 accessed last May 08, 2019 from
https://www.ohchr.org/Documents/Publications/FactSheet7Rev.2.pdf.
9
The Baspian Government as well as the International Covenant on
Civil and Political Rights clearly recognizes in its provisions the protection
of liberty and security of a person from arbitrary arrest and detention.
The right to review the legality of detention by the court is provided
for in Article 9 of the ICCPR where it reads that “anyone who is deprived of
his liberty by arrest or detention shall be entitled to take proceedings before
a court, in order that that court may decide without delay on the lawfulness
of his detention and order his release if the detention is not lawful.”
The same article also provides that any person arrested or detained
and awaiting for trial shall be brought promptly before the judge or any
officer authorized by law to exercise judicial power. If a person already
detained on a criminal charge is also detained to face an unrelated criminal
charge, that person must be brought immediately before a judge for control.
Fast action is required because prolonged detention without judicial control
increases the risk of the detained to receive ill-treatment. Maltreatment is
violative of the fundamental right to life.
The general consensus for sufficient amount of time to prepare for a
judicial hearing is 48 hours after the arrest. As can be found in the Human
Rights Committee GC No. 35, “In the view of the Committee, 48 hours is
ordinarily sufficient to transport the individual and to prepare for the judicial
hearing; any delay longer than 48 hours must remain absolutely exceptional
and be justified under the circumstances. Longer detention in the custody of
law enforcement officials without judicial control unnecessarily increases
the risk of ill-treatment.”
After the arrest of Ragnar Lodbrok, they remained in custody and
their case had been postponed many times by reason of overwhelming
workload of cases suffered by the courts. This fact prejudices the right of
Ragnar Lodbrok, putting to stress that the case of Lodbrok had been
postponed not just once, not twice but many times and thus violating his
right to liberty. The courts must take into consideration the right of the
accused to a speedy disposition and should as well take into consideration
that detaining the accused for over a long period of time would tantamount
to a violation of his right to liberty.
The failure of the Baspia Courts to perform its duties within a
considerable amount of time without impairing the rights of the accused
leaves us to resort to availing remedies from the Corona Human Rights
Court.
Arguments on Merits
10
I. Violations of Freedom of Expression
A. Ragnar Lodbrok
3
International Covenant on Civil and Political Rights, Human Rights Committee
United Nations 2011 accessed from Office of the Human Rights Commission last May
9, 2019 from https://www2.ohchr.org.
4
Ibid.
11
riot nor did the incident fall under the”fighting words doctrine” where insults
were directed at a specific individual. The decision stated that:
The second time Lodbrok was arrested was for what was alleged as
subversive commentary. Reasonable criticism, notwithstanding the use of a
derogatory term “Zvidum-dum” invoked to the Baspian President, is not
enough to justify the arrest of Lodbrok with accusations of subversion.
Accordingly, subversive activity is a pattern of acts designed to
overthrow a government by force or other illegal means.6Lodbrok’s
emotional outburst can hardly apply which therefore does not justify his
arrest. Under the ICCPR, citizens are safeguarded by the protection of the
12
law and their universal right to criticize and scrutinize public officials as this
forms part of a functional democracy.
In the case of Mukong v. Cameroon7 , HRC explained that “Any
restriction of the freedom of expression pursuant to paragraph 3 of article 19
must cumulatively meet the following conditions: it must be provided for by
law, it must address one of the aims enumerated in paragraph 3(a) and (b) of
article 19, and must be necessary to achieve the legitimate purpose.
Furthermore, the HRC held that “the legitimate objective of safeguarding
and indeed strengthening national unity under difficult political
circumstances cannot be achieved by attempting to muzzle advocacy of
multi-party democracy, democratic tenets and human rights”.
In the case at bar, the State party has indirectly justified its actions on
grounds of national security and/or public order, by arguing that the author's
right to freedom of expression was exercised without regard to the country's
political context and continued struggle for unity. While the State party has
indicated that the restrictions on the author's freedom of expression were
provided for by law, it must still be determined whether the measures taken
against the author were necessary for the safeguard of national security
and/or public order.”
An applicable principle is also evident in the case of Nilsen and
Johnsen vs. Norway8 where the Norwegian Supreme Court held that there
was a violation of freedom of expression when the government through their
agencies maliciously impugned the integrity of a professor who published a
book on the increasing incidents of police brutality by the Norwegian Police
Association. In the said case, the Court emphasized that the issues
highlighted in the book was of “serious public concern” and was based on
credible information. The Court ruled that being so, it constitutes forms of
political speech or debate on questions of public interest that should be
protected.
Similarly, in New York Times vs. Sullivan9, the US Supreme Court
emphasized that criticism should be “free, open, robust and even
unrestrained” to balance the power of politicians and the “seductive
influence” such power creates upon corrupt men and women. The decision
in this case demonstrated “the right to make false statements” where Court
ruled that in cases of libel, a “public official” must show that the newspaper
acted with actual malice-- that is, with knowledge that it was false or with
reckless disregard for truth.
c. Criminalizing criticisms against a public official bears resemblance to
a desacato law which is incompatible with the provisions of the ICCPR
13
The provisions of the Public Order Act of Baspia which criminalize
criticisms against the President bears similarity with a desacato law which is
incompatible with Article 13 of the Convention.
The use of “desacato laws” to protect the honor of public officials
acting in their official capacities is an illegitimate restriction that does not
serve any real purpose in a democratic society. It runs counter to the
fundamental principle that in a democratic country, a government must be
subject to controls and scrutiny to prevent abuse of its expansive powers. It
runs contrary to the essence of Article 19 of the ICCPR since it imposes
subsequent punishment for the exercise of freedom of expression.
Further, according to article 27th of the Vienna Convention —of
which Baspia is also bound by reason of its membership of the ICCPR—a
State party cannot invoke the provisions of its domestic law to justify the
breach of a treaty.10
In 2012, the Bolivian Constitutional Court ruled unconstitutional the
article which prohibited “slandering or defaming a public official by any
means because of his or her duties”. In this case, a citizen was imprisoned
for publishing a report which alleged that a public prosecutor asked her for
money to confirm a judgement. The Court ruled that
“...the offense of desacato is not necessary in a democratic society to
protect interests such as the honor of officials. First, because there are
other less onerous methods; and, secondly, because this results in a
disproportionate impact that affects the legitimate “interest of the
public in learning of certain factors that could influence [the]
performance of [public] duties.”11
This is also reflected in the case of Mwenda v. Attorney General12
where a journalist was charged with a crime of sedition for criticizing the
President on his live radio talk show. The Constitutional Court of Uganda
ruled that the state needed to provide evidence to prove that the remarks of
the journalist unduly affected public interest and that the law on sedition was
too vague as to inhibit the enjoyment of freedom of expression under article
29 of the very same Ugandan Constitution.
14
other hand, Ragnar Lodbrok and four others were arrested for insulting the
DNC and the President of Baspia over the radio. Applicant submits that the
arrest of Ragnar Lodbrok is invalid for it should also be considered a valid
exercise of the freedom of expression as the court ruled for the case which
involves DNC.
13 International Law on the Right to Freedom of the Press, Dr. Dang Dung Chi & Chu Thi Thuy Hang, M.A p.
5 .(date and time accessed May 9, 2019 7:55 pm)
14
Papnasam Labour Union vs. Madura Coats Ltd., 1995 AIR 2200 (December 8, 1994).
15
(3) The restriction to be reasonable should not be abstract. But
no fixed principles can be laid down and the standards of reasonability
would vary from case to case and time to time.
(4) While interpreting the term reasonable, the court should
keep in mind the complex issues of the society and the intention of the
legislature of the statute in question.
(5) The term reasonable is of dynamic nature and hence the
judiciary should keep an elastic and practical approach while
interpreting the term.
6) It is imperative for the court to analyse the social
control before any restrictions can be imposed on the
fundamental rights.
(7) For the interpretation of term reasonable, it is
necessary for the court to examine the social welfare and the
need of prevailing social norms and values.
(8) The word reasonable has to satisfy the test of
procedural reasonability as well as substantive reasonability.”
Though it was held that DNC published those comics and statements
under the privilege of freedom of expression, it cannot be held that they
acted with “truth, justice and objectivity.” According to Yorty v. Chandler15,
a cartoon may be subject to a case of libel if it is found to be malicious and
made to appear as fact a false defamatory material. The applicant holds that
DNC acted with malice regarding their publications. The cartoons were not
factual or based on reality. It was mere opinion and malicious content.
Malice is defined as “knowledge that statements are false or in
reckless disregard of the truth.” 16 Publications done with malice is not what
the laws intend to protect. The press is protected from arbitrary regulation,
especially with how vulnerable it is to censorship and abuse, even if they
criticize the government or any of its instruments. This is in line with their
duty to spread information and make the public aware of the happenings in
society. However, pure malicious imputations are not what the law
contemplates of protecting. Such are biased and against public order and
good morals.
c. Content-based restriction is not a valid regulation of speech
15
Yorty v. Chandler. Civ. No. 35021 (Dec. 15, 1970).
16 New York Times v. Sullivan, 376 US 254 (1964).
16
can be offensive to some. Such discrimination is called content-based
restriction. Content-based restriction is a regulation of speech or expression
that is based on the substance of the message being communicated, rather
than just the manner or method in which the message being expressed.
Content-based restriction is against the values American laws aim to protect
under the freedom of expression. As more popularly quipped: “I disapprove
with what you say, but will defend to the death your right to say it.”17
This type of speech also falls under the “fair comment doctrine.” The
Fair Comment Doctrine “encompasses that if a publication which broadly
speaking true in fact and not made to satisfy any personal agenda or vendetta
would seemingly be protected.”18 Fair comment doctrine protects a
defamatory statement because the statement concerns an opinion on a matter
of public interest.19 The law aims to encourage debate and avoid censorship
and self-censorship.20 The speech of Ragnar Lodbrok should be considered
as fair comment because though it may seem defamatory, it concerns public
interest.
II. Violations on the Concept of Equality Before the Law
17
them and secondly, it allowed the DNC to religiously mock and racially
discriminate Ragnar Lodbrok and his companions by the publishing of the
comical skit contrary to the moral and religious views of the latter. These
acts are of harassment, religious mockery, racial discrimination and
impartiality towards the accused constitute a clear violation to equal
protection of laws granted and enjoyed by all men including Ragnar
Lodbrok and his companions. Therefore, the President of Baspia and DNC
violated the rights of the accused.
18
As, advocates to the rule of law, we must be guided by the existing
laws which paves way to stability of the people and for the people. Hence,
the applicant presents our conclusion to this case:
1. That Ragnar Lodbrok and the members of In and Out Broadway’s
freedom of speech was impaired by as set forth by Art. 19 of ICCPR.
2. That Ragnar Lodbrok and his companions were treated unfairly in
violation of the general principle of equality under the law as
stipulated in the Article 26 of the ICCPR.
3. That Ragnar Lodbrok and his companions were deprived of their
Right to Liberty based on Article 9 of the ICCPR.
4. That the accused, Ragnar Lodbrok and his companions were
innocent.
Wherefore, with all respect reserved to the Honorable Court of
Corona Human Rights, we pray and implore the following: Primordially is
for the dismissal of the case and acquittal of Ragnar Lodbrok and his
companions. Secondly, we pray for the recognition of the freedom of speech
within the bounds of law. Third, we implore the observation and
implementation of the equal protection of laws. Lastly, we pray for
compensation to any damage dealt by the opposing party.
19