Problem Question(using Oscula referencing)
Seculand is a (fictional) High Contracting Party to the European Convention on Human Rights (ECHR). Its Constitution proclaims that it is a ‘secular, liberal and democratic republic’. In recent years it has experienced a rise in religious fundamentalism and a series of ‘ISIS’ inspired terrorist attacks. These have been accompanied by a growth in public debate about the place of religion, and religious symbols, in society. Legal bans have been imposed on the wearing of ostentatious religious symbols in state schools, and of the wearing of face coverings in public places – which includes a prohibition on the Islamic face veil. Most recently controversy has arisen over the wearing of the ‘burkini’* by Muslim women on the nation’s beaches. The Prime Minister of Seculand has stated that the burkini: ‘should be banned. It is an insult to secularism and the Seculandian way of life and incompatible with the nation’s values of toleration, equality and democracy’. Several local town councils have enacted by-laws banning burkinis.
Aisha is a medical student at the University of Seculand. In public she chooses to wear a headscarf in accordance with her religious beliefs. She is a citizen of the (fictional) mountainous non-Council of Europe state, Tagistan. In remote eastern provinces of Tagistan there have recently been a series of well-publicised and violent attacks by an extremist Taliban-style movement (involving shootings and maimings) on women attending universities and pursuing careers. It is reported by human rights NGOs working in Tagistan that elements within the Tagistani security forces have made no efforts to prevent, and may even be complicit in, such attacks. Aisha, a vocal campaigner for women’s education, moved to Seculand in order to be able to pursue her lifelong ambition to study to become a doctor.
Last summer Aisha visited the seaside. In accordance with her religious beliefs concerning modesty, she decided to wear a (pink) burkini on the beach. After emerging from the sea she was approached by two police officers who told her to remove the burkini. Upon refusal she was ordered to leave the beach, which she did. The local town council in question had recently enacted a by-law banning the burkini from its beaches.
The following week, together with other women, Aisha took part in a noisy though non-violent public demonstration in which they protested about the treatment of women wearing burkinis, criticising the ‘fundamentalist secularism’ of the Seculand state. Aisha was later charged under the ancient law of ‘causing a disturbance of religious peace and harmony’. This law dates back to the 16th century when it was used to prevent sectarian conflict between Catholic and Protestant Christians. It was last used in the 1920s against atheist communist activists who set fire to churches.
At her trial for the protest Aisha was denied legal aid since, under Seculandian law, the matter was classified as ‘regulatory’ rather than as a ‘criminal’ offence, due to the low level of penalty imposed. Legal aid is not available in respect of regulatory matters in Seculandia. At the hearing she was found to have breached the regulation and subjected to a fine of 30 euros.
The following week the Seculand Minister of the Interior ordered Aisha’s deportation to Tagistan on the grounds that her student visa was no longer valid because of the legal finding against her.
If she is deported Aisha fears that she will be subjected to violence at the hands of the Taliban style organisations and/or the security forces in her home province in eastern Tagistan, especially given that her case has been widely reported in the media. The Tagistan Government has however provided an undertaking, signed by the Assistant Deputy Under-Secretary to the Minster for Provincial Affairs, that all possible measures to protect women from violence will be taken. There have been very limited diplomatic or other relations between Seculand and Tagistan in the past.
*A ‘burkini’ is a type of swimsuit for women that covers the whole body except the face, the hands and the feet, while being light enough for swimming.
Having exhausted domestic remedies Aisha wishes to take her case to the European Court of Human Rights.
Final Year Students Only
Part A, worth 70% of marks
Advise Aisha on the prospects of the European Court finding violations, or prospective violations, of Article 3, Article 7 and Article 9 of the European Convention on Human Rights.
Part B, worth 30% of marks
Critically assess the general arguments that can be made both for and against the use of the margin of appreciation doctrine by the European Court of Human Rights
You are reminded that your answer will be marked by reference to all the assessment criteria set out below, which include independent research (which should include both primary and secondary sources).
Marks will be awarded for evidence of the following:
a) Demonstration of knowledge and understanding of relevant legal principles, legal rules and legal institutions including recognition and assessment of the context in which the law operates
b) Application of legal knowledge and solution of legal problems
c) Making and presenting a reasoned and logical argument
d) Critically evaluating the merits of competing arguments and making a reasoned choice between alternative solutions
e) Ability to plan and research independently, evidenced by appropriate referencing
f) Effective written communication
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