Collision on Congress Square

Recent events in the center of Ljubljana, where opponents and defenders of women’s right to decide freely about their own bodies came face to face, have raised a great deal of dust in the Slovenian public and politics, which has not yet settled—and doesn’t look as if it will any time soon. This is not the first time we have witnessed in Slovenia a very heated, at times even hysterical, debate on important questions of human rights protection. Unfortunately, it is also not the first time such a debate has been conducted on the basis of a very superficial knowledge of the issues, emotions, quick and often ill-considered reactions, and more or less concealed and often problematic political interests.

Sometimes it helps to stop for a moment and think and talk, with less passion, about what is at stake and how to move forward. There was indeed a collision between different rights on Congress Square. But resolving such collisions is a complex matter that cannot be settled offhand, still less solely on the basis of, and in favor of, one’s own beliefs, however noble.

Let us look first at the rights of those who organized the event on Congress Square “in memory of unborn children.” Much has been said about their right to freedom of expression, protected by Article 10 of the European Convention on Human Rights (ECHR). I would add here that it was also about the right of peaceful assembly, protected by Article 11 of the ECHR. It is important to stress that the Convention not only obliges the contracting states, including Slovenia, to refrain from unjustified and impermissible interference with these rights, but also imposes on them a positive obligation to create the conditions for their unhindered enjoyment. In the case of the right of assembly, this also includes enabling and protecting peaceful gatherings—even if they were not announced and authorized in advance. This fact was systematically overlooked in the case of unannounced protests against the previous government, but it of course also applies during the term of the current one.

On the other hand, both Article 10 and Article 11 also contain provisions that allow, and under certain conditions even oblige, the restriction of these rights. Among those conditions is the protection of the rights and freedoms of others. Here, of course, any such restrictive measure must be based on law and be “necessary in a democratic society.” The question of collision between different rights and freedoms is set out even more precisely in Article 17 of the Convention, which prohibits the abuse of rights and states that “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

What does all this mean for the events on Congress Square?

For the organizers, certainly, that they planted their little flags on the basis of the right to freedom of expression and the right of peaceful assembly. The question, however, is whether, in exercising their rights, they interfered with the rights of others in a way the Convention does not permit. Many believe they did. Some claim it is impermissible to advocate publicly for changing a state of affairs established by the Constitution. That is, of course, not true. The Constitution can of course be changed, through procedures also laid down in the Constitution—and it is permissible to campaign publicly for changes. Imagine if we criminalized efforts to introduce regions or to change the way judges are appointed, a question that is currently already in parliamentary procedure. On the other hand, the question of free decision on the birth of children obviously cannot be equated with the introduction of regions, since the former is a human right protected by Article 5 of the Constitution and explicitly by Article 55. That article was not included in the Constitution because its authors wanted as many abortions as possible in an independent and democratic Slovenia, but because the view prevailed that the right to decide freely on the birth of one’s children is a necessary condition for establishing and preserving the democratic society we chose.

Since I have referred to the ECHR several times, it is also worth mentioning how the European Court of Human Rights has dealt with this topic so far. Opponents of the right to abortion stress that in its case law to date the Strasbourg court has protected this right only to a limited extent, in cases where a ban on abortion could endanger women’s lives. That is true, mainly because the court’s decisions are also influenced by the positions of European states in which the right to abortion is restricted, with all the tragic consequences we are witnessing. However, the ECHR sets only minimum standards for the protection of human rights and in no way prevents member states from setting these standards higher in their domestic law, as Slovenia did with Article 55 of the Constitution, provided they do not thereby violate other rights protected by the Convention. And among those, let us recall, you will not find a right to restrict the rights of other people. The fact that in such an important respect of human rights protection as women’s right to decide autonomously about their bodies we are a step ahead of the minimum standards is a reason for pride, not embarrassment.

That the organizers of the gathering on Congress Square advocated positions which, if implemented, would lead to the restriction of human rights is, in my opinion, beyond doubt. Whether they did so in a way that would require official interference in their right of peaceful assembly and freedom of expression is another question. Only a court could decide that competently, but I personally think not. Let us not forget that the Convention permits only restrictions that are necessary in a democratic society. That threshold must remain high. But even if their gathering was legal, that does not mean their campaign to restrict or even abolish constitutionally guaranteed human rights must be respected, still less that a respectful dialogue must be conducted about it. Respect for the right to freedom of expression does not include a right to automatic respect for what is expressed. A doctrine of taking all different opinions into account, which puts an equals sign between those who fight for human rights and those who demand their restriction, does not strengthen democracy but weakens it. The most appropriate and effective response in this case is an even more resolute protection of human rights by politics and civil society. Part of the latter did respond in this case. By using its right to freedom of expression and peaceful assembly. Everyone can have their own opinion on whether this was done in the most appropriate way. As for the response of politicians, each responded according to their own judgment. Some one way, others another. Everyone can have their own opinion about that too. And they certainly do.