Libertés fondamentales

Enseignement à distance
Formation Continue
Licence 3 semestre 5
Lecturer: Mr. Ciarán Crowley
Édition 2023-2024
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Information



Le présent cours est protégé par le Code de la propriété intellectuelle. En dehors du cadre des
exceptions prévues par la loi, toute reproduction ou représentation intégrale ou partielle,
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 Université de Lille, September 2020

Lecturer: Mr. Ciarán Crowley

Libertés fondamentales, 3é

Topic 1: Introduction to fundamental rights

Topic 2: Lord Hoffman and the Pinochet case (comprehension exercise)

Topic 3: Freedom of expression under Article 10 of the European Convention of Human

Rights

Topic 4: A controversial jury trial (comprehension exercise)

Topic 5: Nomination of a Supreme Court Justice in the United States (comprehension

exercise: more difficult)

Topic 6: Equality and Discrimination

Topic 7: Déportation of man with HIV to Zimbabwe blocked by UK Supreme court Text and question

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Topic 1: Introduction to fundamental rights

 Fundamental rights are those of great importance and which are enshrined in
constitutions around the world.

 Examples of such rights include:

(a) The right to liberty

(b) The right to expression

(c) The right to a fair trial

(d) The right to free movement

(e) _______________

Question 1

Please make a list of at least 3 more fundamental rights.

(f)

(g)

(h)

 ‘Traditionally, the term ‘fundamental rights’ is used in a constitutional setting whereas

the term ‘human rights’ is used in international law. The two terms refer to similar
substance as can be seen when comparing the content in the Charter of Fundamental
Rights of the European Union with that of the European Convention on Human Rights
and the European Social Charter.’

--See
https://fra.europa.eu/en/about-fundamental-rights/frequently-asked-questions#differ
ence-human-fundamental-rights

 Some definitions of human rights may be found below:

“Human rights are rights inherent to all human beings, regardless of race, sex, nationality,
ethnicity, language, religion, or any other status. Human rights include the right to life and
liberty, freedom from slavery and torture, freedom of opinion and expression, the right to
work and education, and many more. Everyone is entitled to these rights, without
discrimination.” (United Nations)

“Human rights are the basic rights and freedoms that belong to every person in the world,
from birth until death. They apply regardless of where you are from, what you believe or how
you choose to live your life. They can never be taken away, although they can sometimes be
restricted – for example if a person breaks the law, or in the interests of national security.”
(UK Equality and Human Rights Commission)

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 Human rights are often debated by different groups in society.

 Consensus in certain areas (right to die, abortion or aspects of free expression) is not
always found. Keep an eye on events in the US concerning the right to abortion.

Amy Coney Barrett, next U.S.

Supreme Court Justice?

Question 2

Describe an area of law in France where consensus has not been reached on a human
right.

 Human rights during the current Covid crisis

 Right to life (what about the livelihoods of business-owners or young people who wish
to travel/ work abroad?)

 Right to free assembly (with limits, and if so what?)

 Right to access healthcare (can this be provided to everyone, considering the economic
limits of governments?)

 What about the right to free movement? (What are the legal limits of government
lockdowns?)

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 How to balance the liberty of the individual with the common good?

 See following UN Report

https://www.un.org/victimsofterrorism/sites/www.un.org.victimsofterrorism/file
s/un_-_human_rights_and_covid_april_2020.pdf

Question 3

In your opinion, is public health the main priority during the Covid crisis or do
governments need to better protect fundamental rights?

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 Where do we draw the line on describing a ‘fundamental right’?

 In cases like the right to free speech or the right to a fair trial, the line is usually clear
(note exception of internment regarding the right to a fair trial). But what of social issues,
such as social mobility or equality of opportunity? Or to receive a ‘fair wage’ or
holidays?

Advice in answering questions in a law exam

 Making reference to the law (specific legislation, ECHR case-law, legal and
philosophical theory).

 Remembering case names, the facts of cases and the broader context.

 Recounting precise legal and theoretical knowledge rather than vague and opinionated
answers.

 Answering the question asked rather than simply recounting irrelevant information that
you do happen to know.

A brief history

 Modern fundamental rights are generally traced back to the American and French
revolutions, though there are instances earlier in history too (Magna Carta 1215, for
example).

 US Declaration of Independence (1776): “ We hold these truths to be self-evident, that

are men are created equal...”

 Virginia Declaration of Rights in the same year: “ All men are by nature equally free and
independent...”

 No doubt only a brief mention is required for the French situation! The French
Declaration of the Rights of Man and Citizen declared in 1789 that: “les droits naturels,
inaliénables et sacrés de l’Homme...” or “La liberté consiste à pouvoir faire tout ce qui
ne nuit pas à autrui”.

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The Holocaust and WWII

 The world witnessed an historic turning-point in the story of the protection of human
rights following the Holocaust and WWII.

 The tragedy of the Holocaust mobilized the international community into action.
“Human rights” also became one of the moral arguments used by Allied forces as the war
went on.

 At the war’s end, Churchill heralded “the enthronement of human rights”, before the
Nuremberg Trials prosecuted Nazi leaders for “crimes against humanity”.

 Remember too that each era will have its own contemporary developments in both the
law and fundamental rights. The law on same-sex marriage and anti-discrimination laws
are of relatively recent vintage, for example.

'Every age has its law. Cuius tempora eius ius'

--Professor Rafael Domingo.

The Nuremberg Trials

'Crimes against international law are committed by men, not abstract entities, and only
by punishing individuals who commit such crimes can the provisions of international law
be enforced ... individuals have duties which transcend the national obligations of
obedience imposed by the individual state.'

--See International Military Judgment (Nuremberg), Judgment and Sentences, 1

October 1946, reproduced in (1947) 41 AJIL 172, 220–1.

 The precedent set in Nuremberg enabled subsequent courts to impose individual criminal
responsibility on individuals through international criminal law (see the Balkans War and
the International Criminal Tribunal for the Former Yugoslavia).

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 Following the Nuremberg Trials in 1946 and heeding the call of ‘Never Again’, the
Universal Declaration of Human Rights (‘UDHR’) was passed in 1948.

 Note too the Convention on the Prevention and Punishment of the Crime of Genocide, 1
January 1948 (entry into force 12 January 1951). This was just one of many international
human rights conventions that have been passed since WWII.

Bibliography

 Introductory chapters in Human Rights texts such as Human Rights Law, by Howard
Davies and Dworkin's Taking Rights Seriously (1977).

 Articles such as ‘Can Human Rights Survive?’, by Conor Gearty and Waldron's Theories
of Rights (1984).

 International Human Rights Law, Moeckli et al., 2017.

 You may have a quick glance at historical rights charters such as: the Magna Carta
(1215), the American Declaration of Independence (1776), the French Declaration of the
Rights of Man (1789) and the Universal Declaration of Human Rights (1948).

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Topic 2: Lord Hoffman and the Pinochet case (comprehension exercise)

How Pinochet tainted Hoffmann's brilliant career

By Joshua Rozenberg, 23 April 2009

The Law Society Gazette

So, farewell then Lord Hoffmann. The much misspelled judge retired as a law lord this
week to earn some real money as an international arbitrator and mediator. He will
practise from Brick Court Chambers – whose joint head, Jonathan Hirst QC, proclaimed
that Hoffmann’s ‘reputation as one of the leading jurists of the last 20 years is
unquestioned’.

Really? Some of us certainly questioned Hoffmann’s reputation just a decade ago.

Perhaps a quick reminder would be in order.

First, though, I should stress that I am not questioning his intellectual powers, which
remain formidable, nor his knowledge of the law, which strikes me as masterly. Mention
Hoffmann’s name to any commercial lawyer and you will be told of some visionary
ruling of his that has been followed by lesser judges ever since.

Nor am I objecting to his willingness to speak his mind when other judges would have
been more tactful. The obvious example is the so-called Belmarsh case, decided in
December 2004, when the law lords were asked whether there was a ‘public emergency
threatening the life of the nation’ sufficient to justify legislation under which foreign
terrorist suspects had been detained indefinitely.

Hoffmann thought not. This is a perfectly respectable point of view – though one, I
believe, that underestimates the long-term threat to Britain. But there was really no need
for him to have added that ‘the real threat to the life of the nation... comes not from
terrorism but from laws such as these’. That sentence, which dominated media reports of
the ruling, undermined his fellow law lords by giving the impression that they had
decided the case on political grounds.

And although it seems a bit late now to say that the European Court of Human Rights
‘lacks constitutional legitimacy’ – as Hoffmann did in a lecture to the Judicial Studies
Board last month – I believe he was on stronger ground in suggesting that the European
judges should be slow to interfere when a national court has properly taken account of a
Strasbourg ruling.

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But, if Hoffmann’s reputation really had been unquestioned, he should now be
approaching his retirement age of 75 as senior law lord – the very pinnacle of the judicial
hierarchy. Appointed to the Lords when he was only 60, he would have become
presiding judge in our final court of appeal if ‘senior’ had still meant ‘longest-serving’.

That convention was abolished in 2000 when Lord Irvine, the Lord Chancellor,
announced that Lord Bingham was to become senior law lord. It was a brilliant move:
Bingham had never seemed entirely comfortable as Lord Chief Justice and went on to
flourish in the House of Lords. But I suspect it would never have happened but for the
Hoffmann debacle of 1998.

It was in November of that year that the law lords heard and decided the first of three
appeals involving Augusto Pinochet. The former Chilean dictator was challenging
attempts to extradite him to Spain, where he faced charges of torture and hostage-taking.
Put simply, the House of Lords had to decide whether Pinochet had immunity from arrest
and extradition. Earlier, the High Court had decided he did enjoy immunity for
everything he had done as head of state. If the law lords were to reject an appeal by the
Spanish prosecutor, Pinochet would return to Chile in triumph.

There was immense interest in the outcome, which turned out to be a cliff-hanger.
Delivering their televised judgment, the law lords appeared evenly split until Hoffmann,
the most junior, voted to allow the prosecutor’s appeal – agreeing with Lords Nicholls
and Steyn that Pinochet did not have immunity from prosecution. Hoffmann gave no
reasons of his own.

A few days later, it emerged that Hoffmann was a director and ‘chairperson’ of Amnesty
International Charity Ltd, a body set up to support Amnesty International. Nothing
wrong with that, of course – or the fact that his wife had been employed by the campaign
group for some 20 years. But Amnesty was a party to the case. It had been given leave to
intervene and address the law lords in support of the Spanish appeal.

The normal thing for a judge to do in such circumstances is to declare an interest and
invite the parties to object or acquiesce. It has long been rumoured that Lord Slynn, who
chaired the panel of five law lords, paused at the start of the hearing in the expectation
that Hoffmann would do just that. He did not. Perhaps Hoffmann thought he might be
removed from a case he must have wanted to hear. Perhaps he thought it might cause
unnecessary delay. He has never said.

According to rumour, Slynn felt let down by Hoffmann. The ruling given by Slynn’s
panel had to be ‘vacated’ – the only time this has ever happened – and the case was

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reheard by a fresh panel. But we may never know what happened unless an insider now
feels free to tell us: Slynn died earlier this month.

Need I explain why the Slynn-Hoffmann ruling was set aside by an appeal committee of
five other law lords? It must surely be obvious to any lawyer. As Lord
Browne-Wilkinson said in the House of Lords on December 17, 1998, ‘in the special
circumstances of this case, including the fact that Amnesty International was joined as an
intervener and appeared by counsel before the appellate committee, Lord Hoffmann, who
did not disclose his links with Amnesty International, was disqualified from sitting’.

See:
https://www.lawgazette.co.uk/analysis/how-pinochet-tainted-hoffmanns-brilliant-career-/
50436.article

Q1. In what field of law did Lord Hoffmann make his name as a brilliant judge?

Q2. Was Lord Hoffmann a more outspoken judge than most? Explain.

Q3. Was there a lot of public interest in the Pinochet trial?

Q4. Was Lord Browne-Wilkinson’s test of judicial bias in the House of Lords too strict
or does it seem reasonable?

Q5. In your opinion, was Lord Hoffmann wrong not to remove himself from the
Pinochet trial?

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Q6. What was unique about the Pinochet case?

Q7. Spot 1 difference that we see between the common law and civil law mentioned in
the text.

Q8. Find the corresponding synonyms in page 1:

(a) “discreet”- (b) “compromised”-

(c) “thrived”- (d) “disaster”-

Q8. Research the Belmarsh case. Did the House of Lords stand up for fundamental liberties in
that case?

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Topic 3: Freedom of expression under Article 10 of the European Convention of Human
Rights

1. Introduction to Freedom of Expression under ECHR Law

2. Expression: Not only words

3. Hate Speech and Incitement to Violence: Jersild v Denmark

1. Introduction to Freedom of Expression under ECHR Law

 See Article 10 below:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality of the
judiciary.

 ‘The interpretation of the Convention’s text is dynamic and evolutive, making the
Convention a living instrument, which must be interpreted in the light of the
present day conditions. Accordingly, the Court is (and must be) influenced by the
developments and commonly accepted standards in the member states of the Council of
Europe.'

--Dominika Bychawska-Siniarska (2017)

Question 1

Do you support the idea that the law should be read in ‘light of the present day’?
Explain your answer.

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 The freedom of expression has been explained in the following ways:

“Constitutes one of the essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual’s self- fulfilment.”

--Dichand and Others v. Austria, February 2002

“The press plays a pre-eminent role in a State governed by the rule of law.”

Castells v. Spain, April 1992

 However, the right is not unlimited. The ECHR relied on Article 17 in holding that
freedom of expression may not be used to lead to the destruction of the rights and
freedoms granted by the Convention. See Garaudy v. France (2003) and the application
of the principle of tolerance.

 Garaudy wrote a book The Founding Myths of Modern Israel, in 1995.

 Criminal complaints were made against Garaudy by former resistance members,

deportees and human rights bodies alleging offences, such as (i) disputing the existence
of crimes against humanity (ii) racial defamation in public and (iii) incitement to racial
hatred.

 In France, Garaudy was prosecuted under the Freedom of the Press Act of 29 July 1881.
He was found guilty in the Paris Court of Appeal, and then in the Court of Cassation of
the aforementioned crimes.

 The French courts found his books to be revisionist and imposed suspended sentences of
imprisonment, as well as fines (€26,000) and compensation payable to the victims
(€33,5000).

 Mr. Garaudy made an appeal to the ECtHR under Article 10 (freedom of expression) that
his right to freedom of expression had been infringed.

 In its judgment (see page 29 below, in French), the ECtHR referred to Article 17
(prohibition of abuse of rights) and said that the book's revionism and racist views were
incompatible with democracy and human rights and its proponents:

'Or, il ne fait aucun doute que contester la réalité de faits historiques clairement
établis, tels que l'Holocauste, comme le fait le requérant dans son ouvrage, ne relève
en aucune manière d'un travail de recherche historique s'apparentant à une quête de
la vérité. L'objectif et l'aboutissement d'une telle démarche sont totalement
différents, car il s'agit en fait de réhabiliter le régime national-socialiste, et, par voie
de conséquence, d'accuser de falsification de l'histoire les victimes elles-mêmes.
Ainsi, la contestation de crimes contre l'humanité apparaît comme l'une des formes
les plus aiguës de diffamation raciale envers les Juifs et d'incitation à la haine à leur
égard. La négation ou la révision de faits historiques de ce type remettent en cause
les valeurs qui fondent la lutte contre le racisme et l'antisémitisme et sont de nature à

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 troubler gravement l'ordre public. Portant atteinte aux droits d'autrui, de tels actes
sont incompatibles avec la démocratie et les droits de l'homme et leurs auteurs
visent incontestablement des objectifs du type de ceux prohibés par l'article 17 de la
Convention.

La Cour considère que la plus grande partie du contenu et la tonalité générale de

l'ouvrage du requérant, et donc son but, ont un caractère négationniste marqué et
vont donc à l'encontre des valeurs fondamentales de la Convention, telle que les
exprime son Préambule, à savoir la justice et la paix. Elle considère que le requérant
tente de détourner l'article 10 de la Convention de sa vocation en utilisant son droit à
la liberté d'expression à des fins contraires à la lettre et à l'esprit de la Convention.
De telles fins, si elles étaient admises, contribueraient à la destruction des droits et
libertés garantis par la Convention.

En conséquence, la Cour estime qu'en vertu des dispositions de l'article 17 de la

Convention, le requérant ne peut pas se prévaloir des dispositions de l'article 10 de
la Convention en ce qui concerne les éléments relevant de la contestation de crimes
contre l'humanité.'

Question 2

(a) Explain, in 3 points, the decision of the European Court of Human Rights in
Garaudy.

(b) In your view, was the right decision made by the European Court in Garaudy?

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2.Expression: Not only words

 ‘Expression’ under Article 10 is not only words, but has also been held to be:

(a) images: Chorherr v. Austria (1993).

(b) actions: Steel and Others v. the United Kingdom (1998).

(c) symbols: Donaldson v. the United Kingdom (2011).

(d) the right not to speak. K. v. Austria, (1992), in the context of self- incrimination
during criminal proceedings.

(e) satire: Eon v. France (2013) or Kuliś and Różycki v. Poland (2009).

 We shall just look at Eon v. France as it is a case you may be familiar with.

 Facts: during a visit by the President of France in 2008, the applicant waved a small
placard reading “Casse toi pov’con” (“Get lost, you sad prick”) as the President’s walked
past. This was an allusion to a much-publicised phrase uttered by the President himself.

 The appellant was stopped by the police and was later prosecuted by the public
prosecutor for insulting the President. He was found guilty and fined thirty euros.

 Article 10: concerned the issue of whether insulting the President should remain a
criminal offence, a matter that was regularly debated in Parliament.

 Holding: Article 10 violated.

 Why? Because phrase had been:

(i) used by the President himself

(ii) bandied about in the media

(iii) humorous in tone

(iv) done in the medium of irreverent satire.

 Court held satire was a form of artistic expression and social commentary which, by its
inherent features of exaggeration and distortion of reality, naturally aimed to provoke

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 and agitate. Accordingly, any interference with the right of an artist – or anyone else – to
use this means of expression should be examined with particular care.

 Imposing a criminal penalty for such conduct could have a chilling effect on satirical
forms of expression relating to topical issues. Such forms of expression could themselves
play a very important role in the free discussion of questions of public interest, without
which there was no democratic society.

 Accordingly, the competent authorities’ recourse to a criminal penalty had been

disproportionate to the aim pursued and unnecessary in a democratic society.

'60. La Cour retient, d’autre part, qu’en reprenant à son compte une formule abrupte, utilisée
par le président de la République lui-même, largement diffusée par les médias puis reprise et
commentée par une vaste audience de façon fréquemment humoristique, le requérant a choisi
d’exprimer sa critique sur le mode de l’impertinence satirique. Or, la Cour a souligné à
plusieurs reprises que la satire est une forme d’expression artistique et de commentaire social
qui, de par l’exagération et la déformation de la réalité qui la caractérisent, vise naturellement
à provoquer et à agiter. C’est pourquoi il faut examiner avec une attention particulière toute
ingérence dans le droit d’un artiste – ou de toute autre personne – à s’exprimer par ce biais
(Vereinigung Bildender Künstler c. Autriche, no 8354/01, § 33, 25 janvier 2007, Alves da
Silva c. Portugal, no 41665/07, § 27, 20 octobre 2009, et mutatis mutandis, Tuşalp c.
Turquie...'

61. La Cour considère que sanctionner pénalement des comportements comme celui qu’a eu
le requérant en l’espèce est susceptible d’avoir un effet dissuasif sur les interventions
satiriques concernant des sujets de société qui peuvent elles aussi jouer un rôle très important
dans le libre débat des questions d’intérêt général sans lequel il n’est pas de société
démocratique (mutatis mutandis, Alves da Silva, précité, § 29).

62. Eu égard à ce qui précède, et après avoir pesé l’intérêt de la condamnation pénale pour
offense au chef de l’Etat dans les circonstances particulières de l’espèce et l’effet de la
condamnation à l’égard du requérant, la Cour juge que le recours à une sanction pénale par les
autorités compétentes était disproportionné au but visé et n’était donc pas nécessaire dans une
société démocratique.'

Question 3

(a) Do you recall this case? Was it a big deal in France at the time?

(b) Did the European Court reach the right decision or should insulting a President
remain a crime under French law?

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3. Jersild v Denmark: Investigative reporting or hate speech?

 In Jersild a journalist on TV was convicted by Danish courts of aiding and abetting the
dissemination of racist statements.

 He interviewed young people who made racist comments when interviewed for a serious
political programme, among them: “It’s good being a racist. We believe Denmark is for
the Danes”; “People should be allowed to keep slaves”, etc.

 The Danish court said that the journalist should have explicitly criticised the racist views
expressed during the interviews.

 The ECtHR disagreed with this and set forth a number of reasons, most notably the
protection of the press. It argued 3 main points:

'[the programme] could not objectively have appeared to have as its purpose the
propagation of racist views and ideas. On the contrary, it clearly sought – by means of
an interview – to expose, analyse and explain this particular group of youth, limited and
frustrated by their social situation, with criminal records and violent attitudes.' (para. 33)

'the methods of objective and balanced reporting may vary considerably, depending
among other things on the media in question. It is not for this Court, nor for the national
courts for that matter, to substitute their own views for those of the press as to what
technique of reporting should be adopted by journalists.' (para. 31)

'[t]he punishment of a journalist for assisting in the dissemination of statements made by

another person in an interview would seriously hamper the contribution of the press to
discussion of matters of public interest and should not be envisaged unless there are
particularly strong reasons for doing so.' (para. 35)

 We can read that ECtHR decided by twelve votes to seven that there was a violation of
Article 10. Thus, it is also useful to look at the dissenting judgments twenty years on
from the case.

Joint Dissent of Judges Ryssdal, Bernhardt, Spielmann and Loizou:

'1. This is the first time that the Court has been concerned with a case of dissemination of
racist remarks which deny to a large group of persons the quality of "human beings". In
earlier decisions the Court has - in our view, rightly - underlined the great importance of the
freedom of the press and the media in general for a democratic society, but it has never had to
consider a situation in which "the reputation or rights of others" (Article 10 para. 2) (art. 10-2)
were endangered to such an extent as here.'

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5'...The Danish courts fully recognised that protection of persons whose human dignity is
attacked has to be balanced against the right to freedom of expression. They carefully
considered the responsibility of the applicant, and the reasons for their conclusions were
relevant. The protection of racial minorities cannot have less weight than the right to impart
information, and in the concrete circumstances of the present case it is in our opinion not for
this Court to substitute its own balancing of the conflicting interests for that of the Danish
Supreme Court. We are convinced that the Danish courts acted inside the margin of
appreciation which must be left to the Contracting States in this sensitive area. Accordingly,
the findings of the Danish courts cannot be considered as giving rise to a violation of Article
10...'

 JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ, RUSSO AND

VALTICOS:

'While appreciating that some judges attach particular importance to freedom of expression,
the more so as their countries have largely been deprived of it in quite recent times, we cannot
accept that this freedom should extend to encouraging racial hatred, contempt for races other
than the one to which we belong, and defending violence against those who belong to the
races in question. It has been sought to defend the broadcast on the ground that it would
provoke a healthy reaction of rejection among the viewers. That is to display an optimism,
which to say the least, is belied by experience. Large numbers of young people today, and
even of the population at large, finding themselves overwhelmed by the difficulties of life,
unemployment and poverty, are only too willing to seek scapegoats who are held up to them
without any real word of caution; for - and this is an important point - the journalist
responsible for the broadcast in question made no real attempt to challenge the points of view
he was presenting, which was necessary if their impact was to be counterbalanced, at least for
the viewers.'

 To watch part of the interview, see: https://www.youtube.com/watch?v=BVSXsxyD7Jk

Question 4

(a) Consider the Jersild v Denmark case. Summarise the court’s decision.

(b) Would the same result be found by the court today?

Bibliography

 Introductory texts.

 Important and interesting cases to ponder: Donaldson v. the United Kingdom (2011), Eon
v. France (2010), Jersild v Denmark (1996) and M’Bala M’Bala v. France (2015).

 Dominika Bychawska-Siniarska, 'Protecting the Right to Freedom of Expression under

the European Convention of Human Rights',(2017).
See:https://rm.coe.int/handbook-freedom-of-expression-eng/1680732814

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Topic 4: A controversial jury trial (comprehension exercise)

Jury Secrecy Doesn't Apply if Bias Taints

Deliberations, Justices Rule
By ADAM LIPTAK MARCH 6, 2017, The New York Times (Extract)

Miguel Angel Peña Rodriguez was convicted of three misdemeanors in a case in which a
juror was said to have declared in the deliberations, “I think he did it because he’s Mexican,
and Mexican men take whatever they want.”

WASHINGTON — The Supreme Court ruled on Monday that courts must make an exception
to the usual rule that jury deliberations are secret when evidence emerges that those
discussions were marred by racial or ethnic bias.
“Racial bias implicates unique historical, constitutional and institutional concerns,” Justice
Anthony M. Kennedy wrote for the majority in the 5-to-3 decision.
The case arose from statements made during jury deliberations in a 2010 sexual assault trial.
“I think he did it because he’s Mexican, and Mexican men take whatever they want,” a juror
said of the defendant, according to sworn statements from other jurors submitted by defense
lawyers after the trial was over.
The juror, identified in court papers as H.C., was a former law enforcement officer. After the
trial was over, two other jurors submitted sworn statements describing what he had said
during deliberations. “He said that where he used to patrol, nine times out of 10 Mexican men
were guilty of being aggressive toward women and young girls,” one juror recalled.
Those statements, Justice Kennedy wrote, warranted an investigation by the trial judge into
deliberations that are ordinarily secret. Justices Ruth Bader Ginsburg, Stephen G. Breyer,
Sonia Sotomayor and Elena Kagan joined the majority opinion.

In dissent, Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice
Clarence Thomas, wrote that the majority opinion was a well intentioned but ill-considered
intrusion into jurors’ privacy.

19
“This is a startling development,” Justice Alito wrote, “and although the court tries to limit
the degree of intrusion, it is doubtful that there are principled grounds for preventing the
expansion of today’s holding.”

Justice Kennedy wrote that the usual tools to root out biased jurors — questioning during jury
selection and reports from jurors before they render a verdict — are less effective when race
is at issue. Pointed questions about racism may exacerbate tensions, he wrote. And jurors may
be reluctant, he added, to accuse one another of insensitivity.
“Not every offhand comment indicating racial bias or hostility will justify” an investigation
into jurors’ deliberations, Justice Kennedy wrote. “For the inquiry to proceed, there must be a
showing that one or more jurors made statements exhibiting overt racial bias that cast serious
doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.”
In dissent, Justice Alito countered that it would be difficult to limit the sweep of the ruling.
He added that the court’s constitutional analysis was flawed. “The real thrust of the majority
opinion is that the Constitution is less tolerant of racial bias than other forms of juror
misconduct, but it is hard to square this argument with the nature of the Sixth Amendment
right on which petitioner’s argument and the court’s holding are based,” he wrote. “What the
Sixth Amendment protects is the right to an ‘impartial jury.’ Nothing in the text or history of
the amendment or in the inherent nature of the jury trial right suggests that the extent of the
protection provided by the amendment depends on the nature of a jury’s partiality or bias.”

In earlier cases, the Supreme Court has said that even egregious misconduct in the jury room
cannot be used to challenge a conviction if it would require jurors to testify about what was
said there. Until Monday, though, the court had never confronted whether racial or ethnic
prejudice requires an exception to the general rule.
In 1987, in Tanner v. United States, the Supreme Court let stand convictions in a mail fraud
case in Florida even though the jury had treated the trial as “one big party” fueled by
“rampant drug and alcohol abuse,” as one juror described it. During recesses, jurors drank
pitchers of beer and liters of wine, and they used marijuana and cocaine.
Justice Sandra Day O’Connor, writing for the majority, said there were good reasons to
ignore “irresponsible or improper juror behavior” if it was based on jurors’ accounts of what
had gone on in the jury room.

20
After-the-fact challenges based on jurors’ testimony, she wrote, would make it less likely that
jurors would speak candidly during deliberations. Allowing such challenges would encourage
lawyers to harass former jurors, she said, and undermine the finality of verdicts.
In 2014, in Warger v. Shauers, the Supreme Court unanimously ruled that jurors may not
testify about what went on during deliberations, even to expose dishonesty during jury
selection.
But Justice Sotomayor, writing for the court, suggested that cases involving racial bias might
require a different result. “There may be cases of juror bias so extreme that, almost by
definition, the jury trial right has been abridged,” she wrote. “If and when such a case arises,
the court can consider whether the usual safeguards are or are not sufficient to protect the
integrity of the process.
Miguel Angel Peña Rodriguez, who maintains that he is innocent, was convicted of harassing
and trying to grope two teenage sisters in a racetrack bathroom. A defense witness testified
that Mr. Peña Rodriguez was elsewhere at the time of the assault.
The jury deadlocked on the most serious charge, a felony, but convicted Mr. Peña Rodriguez
of three misdemeanors. He was sentenced to two years’ probation.
In Monday’s decision in Peña Rodriguez v. Colorado, No. 15-606, Justice Kennedy said the
justice system must root out racial bias. “The progress that has already been made,” he wrote,
“underlies the court’s insistence that blatant racial prejudice is antithetical to the functioning
of the jury system and must be confronted in egregious cases.”
Justice Alito responded that the majority’s motives were admirable but misguided, citing the
1987 decision. “The court’s decision is well-intentioned,” he wrote. “It seeks to remedy a
flaw in the jury trial system, but as this court said some years ago, it is questionable whether
our system of trial by jury can endure this attempt to perfect it.”

Q1. Propose an alternative title for the article, giving a reason for your choice. (0,5 marks)

Q2. Find the corresponding synonyms (appearing in order) in the text: [1,5 marks]

(a) “normal”- (b) “trespass”-

(c) “make worse” - (e) “obvious”-

(e) “doubtful”-

21
Q3. Translate into French the following words that appear in the first two paragraphs of the
text: [0,5 marks]

“marred”- (b) “bias”-

Q4. Explain if you favoured the reasoning of the majority or of the dissenting judges in the case
concerning Mr. Rodriguez. [1,5 marks]

Q5. Why did the Court in Tanner v United States not question the decision of the jury-even if
there was a suspicion that the jury treated the trial as “one big party”? [1 mark]

Q6. (a) Describe the courtroom sketch below.

(b) Can you find the court case recounted in the sketch?

(c) Research the history of courtroom sketches

(d) Look for a courtroom sketch online and describe the trial to the class.

22
23
Topic 5: Nomination of a Supreme Court Justice in the United States (comprehension exercise;
more difficult)

(__________________________________________)

By ORRIN G. HATCH

MARCH 28, 2016 The New York Times

Photograph: Stephen Crowley/The New York Times

JUSTICE ANTONIN SCALIA was among the greatest jurists in our nation’s history. Following an era of
unchecked judicial activism, he became a model of careful jurisprudence, reinvigorating an originalist
interpretation of the Constitution for a new generation. Justice Scalia’s approach was grounded in the words of
legal texts, and not in a judge’s personal preferences or the vagaries of popular political beliefs.

Throughout his time in office, President Obama has demonstrated contempt for the constitutional principles that
Justice Scalia sought to protect. Mr. Obama has proudly suggested that “empathy” for particular people and groups
should motivate a judge’s decisions — a belief squarely at odds with the judicial oath to “administer justice
without respect to persons.” The president has appointed two Supreme Court justices and many lower court judges
who have embraced the sort of judicial activism Justice Scalia spent his career seeking to curtail.

As a senator, Mr. Obama even opposed the nominations of Chief Justice John G. Roberts Jr. and Justice Samuel A.
Alito Jr. — two eminently qualified mainstream jurists — because they expressed fidelity to the law as written,
rather than a commitment to progressive policy outcomes.

Most troubling, the president has consistently exceeded the scope of his legitimate constitutional authority,
declaring that “where Congress won’t act, I will.” One result has been a concerted effort by his
administration to stretch the Constitution beyond its breaking point to advance Mr. Obama’s ideological objectives
— from Obamacare and environmental regulation to immigration policy and gun control.

The Senate, under Democratic leadership, was an accomplice in this effort, working to pack the federal courts with
compliant judges and eliminate the threat of judicial checks on Mr. Obama’s executive unilateralism. Largely in

24
reaction to such abuses, the American people elected a Republican Senate majority in 2014 to help restrain the
president.

Given that the American people have elected a president and a Senate majority with drastically different views on
the nature of legitimate constitutional government — a split decision of sorts — it seems appropriate to let 2016
voters decide which of two very different paths the Supreme Court should take.

But the American people can influence that course only if the Senate holds confirmation proceedings after the
election season has ended. This should not be a controversial position.

After all, both Republican and Democratic leaders, including Vice President Joseph R. Biden Jr., have argued in
the past that the Senate should defer consideration of life-tenured judges until after presidential election cycles.

Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred
this late in a term-limited president’s time in office. Considering a nominee now — in the middle of the nastiest
election campaign in recent memory — could damage the judicial confirmation process beyond repair.

Having served on the Senate Judiciary Committee for nearly four decades, I have witnessed firsthand the
deterioration of the confirmation process. Neither party has clean hands on this front.

The bitterness began when liberal senators attempted to savage the reputation of Judge Robert Bork in a campaign
of character assassination led by Mr. Biden, who then was chairman of the Judiciary Committee. So unprecedented
was this vicious effort to sully the nominee’s good name that the Democratic strategy generated its own verb: to
bork.

Just a few years later, hostilities reached new heights when Democrats unapologetically attempted to bork
Clarence Thomas’s nomination. During George W. Bush’s presidency, Senate Democrats led filibusters that were
unprecedented in seeking to block federal court nominees supported by a majority of senators.

Add to this growing list of grievances the Democrats’ “nuclear” demolition of the judicial filibuster and President
Obama’s subsequent efforts to pack the courts — the powerful D.C. Circuit Court of Appeals in particular — with
judges committed to rubber-stamping his progressive agenda.

Given this record, Democrats have no credibility in lecturing Republicans on how to conduct the current
confirmation process. Their recent actions only validate the rationale for waiting. From personal attacks on
Republican committee chairmen to coordinated disruptions by professional activists, liberal pressure tactics belie
any commitment to keeping politics out of the confirmation process.

Considering a nominee in the midst of a toxic presidential election would be irresponsible. Doing so would only
further inject a circus atmosphere into an already politicized confirmation process. Conducting a thoughtful and
substantive deliberation after the election is in the best interests of the Senate, the judiciary and the country.

Orrin G. Hatch is a Republican senator from Utah.

Text Questions

Q1. Propose a title for the article, giving a reason for your choice.

25
Q2. Find the corresponding synonyms (appearing in order) in the text:

(a) “against”- (b) “worrying”-

(c) “conventional”- (e) “tarnish”-

(e) “complaint”-

Q3. Translate into French the following words that appear in the first two paragraphs of the text:

“era”- (b) “curtail”

Q4. Senator Hatch did not want to appoint a Supreme Court Justice nominee until after the Presidential
election in November 2016. Were you convinced by his arguments?

Q5. Does Senator Hatch display a warm attitude towards his Democratic counterparts in the article?

26
Q6. Write a response to the image below.

27
Topic 6: Equality and Discrimination

(a) Introduction

(b) Positive Discrimination and Differential Treatment

(c) Where to draw the Line? Old age

(a) Introduction

 According to Aristotle equal treatment required like situations to be treated alike, and unlike
situations differently. He also noted that:

'Equality and justice are synonymous: to be just is to be equal, to be unjust is to be unequal'.

 What form of equality are we talking about?

 Are we speaking of equality of treatment, or equality of outcome? Or both?

 Some critics point-out that equality is an 'empty idea' (Westen, 1982).

'Equality of Opportunity is partly motivated by the plausibility of treating individuals equally and
partly motivated by the unattractiveness of giving each person the same, or Equality of Outcome.
Equality of Outcome requires that individuals have some share of goods, not merely a chance to obtain
them without the hindrance of some obstacles. A focus on outcomes with respect to literacy among
young children may seem appropriate, since it is important that children actually become literate rather
than have an opportunity to read, which could be missed. But a focus on outcomes may seem less
plausible in other cases, such as equalizing the results of standardized tests. It is a further worry about
Equality of Outcome that it might stifle individuality leading to uniformity of character, of preferences
or of ability.'

--McCoy Family Center, Stanford

Question 1

Distinguish between equality of outcome and equality of opportunity.

28
(b) Positive Discrimination and Differential Treatment

 Defined as:

‘to refer to ‘positive measures’ or ‘special measures’. Special measures aim to foster greater
equality by supporting groups of people who face, or have faced, entrenched discrimination so
they can have similar access to opportunities as others in the community.’

--Australian Human Rights Commission, https://humanrights.gov.au/quick-guide/12078

 One of the many legal devices (along with quotas, scholarships, governmental funding for schools
or families) used to address inequalities in societies.

 There is much public debate on the issue and criticism of the measure too (see also ‘affirmative
action’) in the US.

 Examples of preferences given to some groups under the law include:

(a) in Ireland, Irish-speakers (gaeilgeoirí) can get accommodation grants in university which are
not given to English-speakers.

(b) in the US, affirmative action policies are present. Crosby, Iyer and Sincharoen define the idea
as occurring 'whenever an organization devotes resources (including time and money) to making
sure that people are not discriminated against on the basis of their gender or their ethnic group.
Affirmative action has the same goal as equal opportunity, but differs from equal opportunity in
being proactive’.

(c) In India, the 74th amendment to the Indian Constitution, adopted in 1993, demands that one
third of the seats in local municipal bodies or village councils are reserved for women (Rai
1998).

(d) Legal Gender Quotas in Party Lists in France: Loi no 2000-493 du 6 juin 2000 tendant à
favoriser l’égal accès des femmes et des homes aux mandats électoraux et fonctions electives
[Law No. 2000-493 of 6 June 2000 for the promotion of equal access of women and men to
elected mandates and elected functions].

29
 (e) Legal requirements of reserved seats for women in national parliaments include Bangladesh
(set at 9% of all seats) or Eritrea (9.5%).

(f) A requirement of at least 40 percent of each gender in the board rooms of Norwegian
companies.

 Risk of a backlash from other groups due to such policies? Note recent case taken by
Asian-American university students against Harvard University's Affirmative Action admission
policies.

Question 2

Positive discrimination is one device used by governments to address social problems. Do you
believe there are better or fairer alternatives?

Judicial Diversity and Positive Discrimination

 This has been a long-running debate regarding the British judiciary. 23% of the judiciary of
England and Wales were women (as of April 2012).

 To read an interesting speech, 'Home Truths about Judicial Diversity', on the matter by Lord
Sumption, a former judge on the UK Supreme Court, see:
https://www.supremecourt.uk/docs/speech-121115-lord-sumption.pdf

 Lord Sumption is against the use of positive discrimination in selecting the judiciary:

'In any honest debate about positive discrimination, we would need to measure the
advantages of a more representative judiciary against a realistic assessment of the cost of
achieving it. In particular, we need to make some assessment of the impact on the quality of
the bench which would result from qualifying the principle of selection ‘solely on merit.’

 Lord Sumption concludes his speech by stating that:

'We may even have to learn patience. The alternative is to do serious harm to the quality
and standing of the judiciary, undermining an institution which however imperfect has
been one of the more successful areas of English public life.'

30
Question 3

Lord Sumption argues against the use of positive discrimination in the selection of the British
judiciary. Is he convincing?

C) Where to draw the Line? Old age

 Some people are treated differently, simply based on their age.

(a) In England, judges on the Supreme Court have to retire at 70 under Section 26 of the Judicial
Pensions and Retirement Act 1993, unless a Minister grants permission for particular judges to
retire after this age.

(b) Under The Children and Young Persons Act 1933 s 23 and s 24, England and Wales has a
criminal age of responsibility set at 10 years of age (in Scotland it used to be 8!) because children
below this age are unlikely to have the capacity to understand what they had done wrong and
why.

(c) There are many more examples…Can we think of any?

 Age discrimination in academia has recently made the headlines.

 Prof Paul Ewart is the latest academic in the UK to challenge policies that seek to force
employees to retire at a certain age.

 Oxford university’s Employer Justified Retirement Age (EJRA) policy was introduced in 2017 to
ensure that older professors retire and make way for a new generation of younger and more
ethnically diverse scholars. Ewart challenged this policy in the Employment Tribunal, and won.

31
 Prof Ewart, who worked at Oxford for 38 years until September 2017, claimed that his
“dismissal” was unfair and amounted to age discrimination.

 Oxford argued its policy aimed at “inter-generational fairness and improvements in diversity”.

 Oxford carried out an equality impact assessment before bringing in the EJRA in 2011, which
found that enforcing a retirement age would cut down the number of old, white and male staff and
boost the number of young, female and Black, Asian and Minority Ethnic (BAME) academics. Of
the 221 academics due to reach the self-imposed retirement age of 67 in 2011-17, 84 per cent
were male, the assessment found, and there was a “clear pattern” of greater ethnic diversity in
younger age groups. (from the Daily Telegraph)

 In December 2019, Prof. Ewart won his case in the Employment Tribunal. The tribunal said
the EJRA was highly discriminatory and it was "hard to think of a more severe discriminatory
impact".

Question 4

Are you convinced by the reasoning behind the age-based EJRA policy or do you agree with the
Tribunal’s decision?

 Back to France, with a look at an exam which you may one day sit!

CONCOURS D’ACCES A L’ECOLE NATIONALE DE LA MAGISTRATURE

2.2 - Les conditions d’âge

- Premier concours : candidat âgé de moins de 31 ans

- Deuxième concours : candidat âgé de moins 48 ans et 5 mois

- Troisième concours : candidat âgé de moins de 40 ans

- Recrutement sur titre : candidat âgé de plus de 31 ans et moins de 40 ans

32
La possibilité de présenter le premier concours d’accès étant autorisée jusqu’à 31 ans, cet âge constitue
l’âge minimal pour présenter un dossier de recrutement sur titre (article 18-1 de l’ordonnance n°
58-1270 du 22 décembre 1958).

Question 5

Do such age limits seem fair? Explain the reasons behind such age restrictions.

 See:
https://www.enm.justice.fr/sites/default/files/rub-devenir-magistrat/epreuves_et_programmes_3co
ncours.pdf

 US Military

 To join the...Air Force

You must: Be between the ages of 17-39

Have no more than two dependents.

Pass the Armed Services Vocational Aptitude test. (Minimum AFQT Score: 36)

 To join the..Army

You must: Be between the ages of 17-35

Have no more than two dependents.

33
 Pass the Armed Services Vocational Aptitude test. (Minimum AFQT Score: 31)

 To join the..Coast Guard

You must: Be between the ages of 17- 27

Have no more than two dependents.

Pass the Armed Services Vocational Aptitude Battery test. (Minimum AFQT Score: 40)

See: https://www.military.com/join-armed-forces/join-the-military-basic-eligibility.html

'Genuine Occupational Requirement'

 Finally, the European Court of Justice has struck down certain age laws for being unfair.

 European Commission v. Hungary (2012): the ECJ did not accept a law “abruptly and
significantly” lowering the age-limit of judges from 70 to 62 within one year.

 The ECJ accepted the law's objectives as legitimate: (i) the standardisation of the age-limit
for compulsory retirement in the public sector and (ii) facilitating access for young lawyers to the
professions of a judge. The CJEU held that those aims were legitimate.

 However, the ECJ concluded that the lowering of the retirement age was not
appropriate and necessary to meet those aims.

 Reinhard Prigge and Others v. Deutsche Lufthansa AG (2010): here, the ECJ held there was no
reason why pilots aged over 60 were considered as no longer possessing the physical capabilities
to work as pilots.

 The rule demanded the mandatory retirement of Lufthansa's pilots when they turned 60. Such an
age limit in the collective agreement was lower than that set in German legislation.

 The ECJ found the collective agreement prohibiting pilots from working after the age of 60 was
(i) not compatible with EU law and (ii) constitutes age discrimination.

Bibliography

 Debates on judicial diversity like Lady Hale's 'Equality in the Judiciary'.See:

https://www.supremecourt.uk/docs/speech-130221.pdf

 'Human rights: Some definitions and quotations' (UK Supreme Court website:
https://www.supremecourt.uk/docs/student-learning-resources.pdf).

 ‘Breaking the Barriers: Positive Discrimination Policies for Women’, by Pippa Norris
https://sites.hks.harvard.edu/fs/pnorris/Acrobat/QUOTAS.PDF

34
 Robert Walker, 'Treating like cases alike and unlike cases differently: Some problems of
anti-discrimination law'.

 Laura Abreu, 'Constituency Casework: A guide to age related legislation', House of Commons
Library (2015).

35
 Tutor: Mr. Crowley, Lille University

Topic 7: Deportation of man with HIV to Zimbabwe

blocked by UK Supreme Court
By Dominic Casciani
Home affairs correspondent
29 April 2020, BBC News

See: https://www.bbc.com/news/uk-52470783

The deportation of a criminal to Zimbabwe has been stopped by the Supreme Court amid
concerns his life would be shortened by HIV.

Five justices unanimously ruled the case must be reconsidered in full by immigration judges.

The offender has fought deportation for 14 years and won the reprieve after a decision in a similar case
at the European Court of Human Rights.

The ruling changes UK law which previously allowed such deportations.

The 33-year-old offender, known only as AM, came to the UK as a teenager and since then has been
convicted and jailed for serious offences, including battery and possession of a firearm. He is married
to a British woman and they have a child.

Throughout his legal battle with the Home Office to remain, he has been receiving treatment with a
specific anti-HIV drug that has stabilised his condition, but it is said not to be available in Zimbabwe.

During earlier stages, judges refused to stop his deportation because of long-standing case law in the
UK that it was not a breach of human rights to send someone back to a country with poor medical
services, if their life was not immediately in danger.

However, judges at the European Court of Human Rights later ruled that a deportation could be
inhumane if the individual's life would be significantly shortened by the absence of suitable medical
care for their condition.

In practice that meant someone with a potentially life-threatening medical condition could not be
removed from a European country unless there was some assurance about the care they would receive.

That decision by the Strasbourg judges changed the previous position in human rights law - and AM
argued that he could no longer be deported until evidence about Zimbabwe's health system had been
fully considered.

1
 How the courts relate to each other
• The European Court of Human Rights (ECtHR) oversees the continent-wide laws that set
minimum standards for the treatment of people
• The UK is covered by the court, and it includes British judges
• The Supreme Court can ignore a judgment from the Strasbourg-based court if there is a good legal
reason why it contradicts the situation in the UK
• Most UK cases concerning human rights issues are heard in British courts - very few are considered or
even overturned by the ECtHR.

Ruling unanimously in his favour, five Supreme Court justices said that while they had the power to
ignore the Strasbourg judgment because of the UK's existing law, they agreed with its decision.

They said the European Court of Human Rights had clearly modified the definition of unlawful and
inhumane treatment for cases such as this deportation, and British courts must now take that into
account.

That means that AM's deportation is now blocked until specialist immigration judges in a lower court
examine detailed evidence about Zimbabwe and whether AM's life would be significantly shortened by
a lack of appropriate care.

However, the UK government can win the case if it can show his condition can be adequately managed
in Zimbabwe so that he does not develop full-blown Aids.

"This appeal requires the court again to consider one of the most controversial questions which the law
of human rights can generate," said Lord Wilson.

"The reaction of many British citizens is likely to be, 'We don't want this man here'. His response is,
'But I need to remain here'.

A Home Office spokesperson said it was considering the implications of the ruling carefully.

Q1. Explain the UK Supreme Court’s decision and whether you agreed with it.

Q2. The Supreme Court’s decision is the end of the matter: TRUE or FALSE. Explain.

Q3. AM is a serial re-offender: TRUE or FALSE. Explain.

Q4. The European Court of Human Rights and the UK Supreme Court broadly agree on the law
regarding the deportation of criminals who live with a serious illness: TRUE or FALSE. Explain.

2
‘...five Supreme Court justices said that while they had the power to ignore the Strasbourg judgment
because of the UK's existing law.’

Q5. Discuss whether national courts should be allowed to depart from the jurisprudence of the
European Court of Human Rights.

Q6. Propose the type of evidence the specialist immigration judges should use when examining
AM’s case?

Q7. Briefly discuss a case in the French courts that made the headlines. Why did it capture the
public’s attention?

Q8. Find the corresponding synonyms on page one of the text:

(a) ‘reduced’-
(b) ‘a let-off’-
(c) ‘decision’-
(d) ‘gun’-
(e) ‘established’-
(f) ‘imminently’-
(g) ‘lack’-

Q9. Translate into French the following words found on page two of the text:

(a) ‘oversees’-
(b) ‘overturns’-
(c) ‘ruling’-
(d) ‘modified’-
(e) ‘managed’-
(f) ‘generate’-
(g) ‘reaction’-