Cultural Rights under the European Convention on Human Rights
Although the European Convention does not explicitly protect cultural rights as such, the Court, through a dynamic interpretation of the different Articles of the Convention, has gradually recognized substantive rights which may be termed “cultural rights” in a broad sense.
Right to Artistic Expression
The Court has underlined the importance of artistic expression in the context of the right to freedom of expression (Article 10 of the Convention). Generally, it has applied a high level of protection to artistic works such as novels, poems, or paintings. Artistic works afford the opportunity to take part in the exchange of cultural, political, social information and ideas of all kinds, which is essential for a democratic society. In this sense, the Court has declared that: “Article 10, not only protects the ideas and information but also the form in which they are expressed”.
Access to Culture
The Court considered that States must take into consideration the existence of various cultural, religious, civil, or philosophical communities. The concept of European literary heritage implies that the public of a particular language cannot be prevented from accessing a work which is part of such heritage. The Court underlines the importance of the freedom to receive information for an immigrant who wishes to maintain contact with the culture and language of his country of origin, according to Article 10.
Right to Cultural Identity
The Grand Chamber recognized that Article 8 of the Convention, which guarantees the right to respect for private and family life and home, also protects the right to maintain a minority identity. The Court recognizes the special needs of minorities and an obligation to protect their security, identity, and lifestyle. Apart from the right to maintain a cultural or ethnic minority identity and to lead one’s life in accordance with that identity or tradition, with the positive obligations (Article 14, prohibition of discrimination), Article 8 of the Convention may also apply to the right to freely choose his or her own cultural or ethnic identity. Freedom of thought, conscience, and religion, guaranteed by Article 9 of the Convention, is indeed an important right for minorities to maintain and preserve their identity. In addition, Freedom of association, guaranteed by Article 11 of the Convention, protects the right of persons belonging to minorities to form associations in order to promote their culture and their minority consciousness. The inhabitants of a region in a country are entitled to form associations in order to promote the region’s special characteristics, for historical as well as economic reasons. Finally, freedom of assembly, as enshrined in Article 11 of the Convention, also protects the right of persons belonging to minorities to hold peaceful meetings.
Linguistic Right
The right of everyone to take part in cultural life, enshrined in Article 15, includes the right to express oneself in the language of one’s choice. However, the Convention does not guarantee the right to use a particular language in communications with public authorities or the right to receive information in a language of one’s choice. Also, Article 8 of the Convention may also apply to the right of prisoners to freedom of correspondence in their own language. Linguistic rights may also be protected under the right to freedom of expression guaranteed by Article 10. Linguistic rights in a political or institutional context have also been vindicated before the Court.
Right to Education
The right to education guaranteed by Article 2 of the Protocol by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. Such regulation must never injure the substance of the right to education. Although that Article does not impose a duty on the Contracting States to set up institutions of higher education, any State doing so will be under an obligation to afford an effective right of access to them. The second sentence of Article 2 of Protocol No. 1 enjoins the State to respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. The test applied by the Court in these cases is the following: the State, in fulfilling the functions assumed by it in regard to education and teaching, must ensure that information or knowledge included in the curriculum is conveyed in an objective, critical, and pluralistic manner.
Right to the Protection of Cultural and Natural Heritage
Although the Court has never recognized the right to the protection of cultural and natural heritage as such, it has accepted that the protection of that heritage is a legitimate aim that the State may pursue when interfering with individual rights, especially with the right to property. The Court considered that the control by the State of the market in works of art is a “legitimate aim” for the purposes of protecting a country’s cultural and artistic heritage. The Court also considers that the protection of a country’s cultural heritage is a legitimate aim capable of justifying the expropriation by the State of a building listed as “cultural property”. The Court points out in this respect that the conservation of the cultural heritage has as their aim, the preservation of the historical, cultural, and artistic roots of a region. Finally, the Court has stressed a number of times the importance of the protection of natural heritage in cases of property rights. The protection of the environment or natural heritage is considered a legitimate aim for the interference with the right to property.