__NOTOC__ "Necessary in a democratic society" is a

test Test(s), testing, or TEST may refer to: * Test (assessment), an educational assessment intended to measure the respondents' knowledge or other abilities Arts and entertainment * ''Test'' (2013 film), an American film * ''Test'' (2014 film), ...

found in Articles 8–11 of the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...

, which provides that the state may impose restrictions of these rights only if such restrictions are "necessary in a

democratic society Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose go ...

" and proportional to the legitimate aims enumerated in each article. According to the

Council of Europe The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...

's handbook on the subject, the phrase is "arguably one of the most important clauses in the entire Convention". Indeed, the Court has itself written that "the concept of a democratic society... prevails throughout the Convention". The purpose of making such claims justiciable is to ensure that the restriction is actually necessary, rather than enacted for political expediency, which is not allowed. Articles 8–11 of the convention are those that protect right to family life,

freedom of religion Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedo ...

freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...

, and

freedom of association Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline mem ...

respectively. Along with the other tests which are applied to these articles, the restrictions on Articles 8–11 have been described as "vast limitations", in contrast to

American law The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as va ...

which recognizes nearly unlimited right to freedom of speech under the

First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...

. In the

case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...

of the

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...

, "necessary in a democratic society" is further defined as meeting a "pressing social need" and "relevant and sufficient" to a legitimate aim. The court has defined "necessary" as somewhere between "reasonable" or "desirable" and "indispensable". When defining what constitutes a "democratic society" for the purposes of the test, the Court considers that freedom of speech is one of its foundations (hence restrictions on it must be narrow and focused). The court also considers that "democracy does not simply mean that the views of a majority must always prevail" and that "a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position". In the Greek case (1969), the European Commission of Human Rights found that restrictions imposed by the

Greek junta The Greek junta or Regime of the Colonels, . Also known within Greece as just the Junta ( el, η Χούντα, i Choúnta, links=no, ), the Dictatorship ( el, η Δικτατορία, i Diktatoría, links=no, ) or the Seven Years ( el, η Ε ...

on freedom of association were a violation of the Convention because they worked to create a "

police state A police state describes a state where its government institutions exercise an extreme level of control over civil society and liberties. There is typically little or no distinction between the law and the exercise of political power by the ...

, which is the antithesis of a 'democratic society. The test was developed in the '' Handyside v. United Kingdom'', '' Silver v. United Kingdom'', and '' Lingens v. Austria'' cases, related to freedom of expression. It has also been invoked in cases involving state surveillance, which the court acknowledges can constitute an Article 8 violation but may be "strictly necessary for safeguarding the democratic institutions" ('' Klass and Others v. Germany''). The court has also held that restrictions on

obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin ''obscēnus'', ''obscaenus'', "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be us ...

and

blasphemy Blasphemy is a speech crime and religious crime usually defined as an utterance that shows contempt, disrespects or insults a deity, an object considered sacred or something considered inviolable. Some religions regard blasphemy as a religio ...

may satisfy the requirement of being "necessary in a democratic society", something which is not disputed even by the minority of judges who disagree that such bans are compatible with the convention. It has recently caused controversy in cases where a

burqa ban The burqa is worn by women in various countries. Some countries have banned it in government offices, schools, or in public places and streets. There are currently 16 states that have banned the burqa, including Tunisia, Austria, Denmark, Fran ...

has been judged "necessary in a democratic society" (e.g. in ''

S.A.S. v. France ''S.A.S. v. France'' was a case brought for the European Court of Human Rights which ruled that the French ban on face covering did not violate European Convention on Human Rights's (ECHR) provisions on right to privacy or freedom of religion, nor ...

''). Article 10 cases related to freedom of expression typically do not involve a dispute as to whether interference took place, but whether it was justified as necessary in a democratic society.

References

{{reflist, 40em European Convention on Human Rights Legal tests

See also

References