THE EUROPEAN COURT OF HUMAN RIGHTS

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THE EUROPEAN COURT OF HUMAN RIGHTS

• Unit 14

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Preview

• International instruments
• European organisations
• European Court of Human Rights
• A) Composition and structure
• B) Jurisdiction
• C) Proceedings
• D) Sanctions
• E) Cases

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UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

• Adopted by the United Nations General Assembly 10
  December 1948 in Paris
• Preamble and 30 articles outlining the UN view on
  the human rights guaranteed to all people
• A powerful tool in applying diplomatic and moral
  pressure to governments that violate any of its
  articles

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THE EUROPEAN CONVENTION FOR THE PROTECTION OF
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

• Signed in 1950 entered into force in 1953
• The first comprehensive treaty in the world in
  this field
• Established the first international complaints
  procedure and the first international court of
  human rights
• Transformation of abstract human rights ideals
  into a concrete legal framework
• Problems Concerns over sovereignty and a
  reluctance to take the concept of a state
  accountability too far

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BACKGROUND TO THE CONVENTION

• A regional response to the attrocities committed
  in Europe during the Second World War
• Regional integration and institutionalization of
  common values as a way to make sure Germany would
  be a force for peace together with other West
  European states
• Desire to bring together the non-Communist
  countries of Europe and consolidate their unity
  in the face of the Communist threat

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What does the Convention secure?

• the right to life,
• the right to a fair hearing,
• the right to respect for private and family life,
• freedom of expression,
• freedom of thought, conscience and religion
• the protection of property.

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What does the Convention prohibit?

• torture and inhuman or degrading treatment or
  punishment,
• slavery and forced labour,
• death penalty,
• arbitrary and unlawful detention,
• discrimination in the enjoyment of the rights and
  freedoms set out in the Convention.

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Articles

• The right to life freedom from torture and
  inhuman or degrading treatment freedom from
  slavery, servitude or forced labour liberty and
  security of person detention only in accordance
  with procedures prescribed by law the right to a
  fair and public hearing respect for privacy and
  family life freedom of thought, conscience and
  religion freedom of expression, peaceful
  assembly and association the right to marry and
  found a family freedom from discrimination

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Protocols(additional provisions)

• The right to property the right to education
  the obligation to hold free elections freedom
  from imprisonment for civil debts freedom of
  movement and residence freedom from exile no
  collective expulsion of aliens abolition of the
  death penalty the right to compensation for a
  miscarriage of justice immunity from double
  prosecution for the same offence equal rights
  and responsibility of spouses

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Three generations of human rights

• 1st generation Civil and political rights
• (freedom of speech, the right to a fair trial,
  freedom of religion, voting rights)
• 2nd generation Economic, social and cultural
  rights
• (employment, social security, housing, education)
• 3rd generation solidarity rights
• (right to peace, right to clean environment)

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INSTITUTIONAL CONTEXT

• The Council of Europe
• The European Union

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THE COUNCIL OF EUROPE

• Established in 1949 by a group of 10 states to
  promote democracy, the rule of law, and greater
  unity among the nations of Western Europe
• Until 1990 confined to Western Europe today 47
  member states
• Conditions for admission a genuine democracy
  that respects the rule of law and human rights a
  party to the Convention

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Council of Europe Institutions

• Committee of Ministers foreign ministers of each
  member state,
• Parliamentary Assembly MPsfrom the parliament of
  each member state,
• Secretary General heading the secretariat of the
  Council of Europe.
• The Commissioner for Human Rights - an
  independent institution within the Council of
  Europe, promotes respect for human rights in
  member states.

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THE EUROPEAN UNION

• The Treaty of Paris (1951) establishing the
  European Coal and Steel Community
• The Treaty of Rome establishing the European
  Economic Community (1957)
• The Maastricht Treaty (1992) the European Union
• The Lisbon Treaty (2009)

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The European Union Main institutions

• European Commission
• European Parliament
• Council of the EU
• Court of Justice of the EU (Luxembourg)

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EUROPEAN COURT OF HUMAN RIGHTS(Strasbourg
Court)

• A Council of Europe institution
• Mission to enforce the Convention for the
  Protection of Human Rights and Fundamental
  Freedoms

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Composition and structure

• Number of judges equal to the number of High
  Contracting Parties (Member States)

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Article 21Criteria for office of judges

• They shall be of high moral character and must
  either possess the qualifications required for
  appointment to high judicial office or be jurists
  of recognised competence
• Judges sit in their individual capacity and may
  not engage in any activity that is incompatible
  with their independence, impartiality or the
  demands of a full-time office

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Election of judges

• Elected by the Parliamentary Assembly by a
  majority of votes cast from a list of 3
  candidates submitted by a High Contracting Party
• Serve for a nine-year term
• The term of any judge expires when he or she
  reaches the age of 70

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Structure of the Court

• Single judge
• Committees (3 judges)
• Chambers (7 judges)
• Grand Chamber (17 judges)

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Single judge

• Admissibility of individual applications

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Committees

• 3 judges
• By unanimous vote may declare inadmissible or
  strike out of their list of cases any individual
  application where such a decision can be taken
  without further examination

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Chambers

• 7 judges
• Decide on the admissibility and merits of cases
  not eliminated by a Committee, and on the
  admissibility and merits of inter-State
  applications
• If a case raises serious question of
  interpretation of the Convention, or if there is
  a risk that its judgment may be inconsistent with
  a previous judgement, a Chamber may relinquish
  jurisdiction in favour of the Grand Chamber

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Grand Chamber

• 17 judges
• A panel of judges of the Grand Chamber may
  consider requests from any party to a case that
  has been decided by a Chamber to review the case
  and render its own judgment
• If a case raises a serious question affecting
  the interpretation or application of the
  Convention or the protocols thereto, or a serious
  issue of general importance (Article 43)

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Procedure
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Jurisdiction

• 1) Article 47 the Committee of Ministers may
  request the Court to give an advisory opinion on
  any legal question concerning the interpretation
  of the Convention
• 2) Articles 33 and 34 Contentious jurisdiction
  in inter-state and individual cases

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Article 33 Inter-state complaints

• Any High Contracting Party may refer to the
  Court any alleged breach of the provisions of the
  Convention and the protocols thereto by another
  High Contracting Party

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Inter-State complaints

• A State may lodge a complaint about violations
  committed against persons who are not nationals
  of any of the Contracting States, and even about
  violations against nationals of the respondent
  state
• Any alleged violation of the guaranteed rights
  a sufficient cause for action

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Article 34 the right of individual petition

• The Court may receive applications from any
  person, non-governmental organisation or group of
  individuals claiming to be the victim of a
  violation by one of the High Contracting Parties
  of the rights set forth in the Convention or the
  protocols thereto. The High Contracting Parties
  undertake not to hinder in any way the effective
  exercise of this right

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The right of individual petition

• One of the most effective means of protecting
  human rights
• Essential element of the supervisory system
  established by the Convention
• Convention protects the rights of individuals
  (natural or legal persons), but not groups as
  such
• Only parties who are directly affected by a
  violation of the rights may bring a claim in
  Strasbourg

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The right to individual petition

• The Court is competent to examine any matters
  arising since the State ratified the Convention
• In a number of cases, the Court has reviewed
  matters that originally arose prior to that time,
  primarily in connection with claims that the
  length of domestic legal proceedings had
  contravened the reasonable time requirement
  under Article 6

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Article 35 Conditions of admissibility

• The Court may deal with a matter only after all
  domestic remedies have been exhausted and within
  a period of 6 months from the date on which the
  final decision was taken

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Proceedings on the merits

• Once the Court declares an application
  admissible, there are 2 courses of action
  (Article 38)
• 1) Examination of a case
• 2) Friendly settlement

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Examination of a case

• The Court pursues its examination of a case
  together with the representatives of the parties
• The Court can undertake any investigation it
  deems necessary
• The States concerned should furnish all
  necessary facilities making witnesses
  available, permitting access to detention
  facilities etc.

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Friendly settlement proceedings

• 1) mediation between the parties
• 2) any friendly settlement should be made on the
  basis of respect for human rights

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Friendly settlements

• Many friendly settlements have been reached when
  the government of the respondent State has taken
  administrative or legislative measures to rectify
  a possible violation of the Convention
• Others have been reached on the payment of an
  agreed sum of money to the applicant

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Friendly settlements

• Should the Court effect a friendly settlement, it
  strikes the case out of its list in a decision
  that takes the form of a judgment
• The Court forwards the judgement to the Committee
  of Ministers, whose role is to supervise the
  execution of any undertakings which have been
  attached to the settlement

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Hearings

• Unless there are exceptional circumstances, all
  hearings are open to the public
• In all circumstances, the judgement is announced
  publicly
• The Court not required to arrive at a unanimous
  decision each judge entitled to submit his or
  her opinion which will be published with the
  majority opinion

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Just satisfaction

• If a High Contracting Party is in breach of its
  obligations under the Convention, and if its
  domestic law does not provide for adequate
  reparation of the breach, the Court shall, if
  necessary, afford just satisfaction to the
  injured party

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Just satisfaction

• In many cases the finding of a violation is in
  itself just satisfaction
• In others a monetary compensation
• Return of unlawfully expropriated property, etc.

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Legal aid

• If an applicant does not have sufficient means to
  meet the costs, the president of a Chamber may
  grant free legal aid effective from the moment
  that the respondent Party submits its written
  observations on the admissibility of the
  application, or when the time limit for their
  submission has expired
• A form of declaration of means certified by the
  appropriate domestic authority

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The Committee of Ministers of the Council of
Europe

• Composed of the foreign ministers of all member
  states
• Serve in their capacity as government
  representatives
• Supervises the execution of the final judgement
  of the Court

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The Committee of Ministers of the Council of
Europe

• Supervision monitoring legislative or
  administrative reforms instituted by States in
  response to a finding of a violation or, in the
  case of jugments for just satisfaction,
  ensuring that the State has made its payment to
  the individual

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The Committee of Ministers of the Council of
Europe

• Has no power to intervene directly in the
  supervision and execution of judgments by the
  offending State
• Some of the most serious sanctions enshrined in
  the Statute of the Council of Europe

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Sanctions

• Article 3 of the Statute provides that respect
  for human rights is a fundamental principle
  underlying participation in the Council
• Article 8 empowers the Committee of Ministers to
  suspend or even to expel from the Council of
  Europe any member State guilty of serious human
  rights violations

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THE DEVELOPMENT OF INTERNATIONAL LAW BY THE
EUROPEAN COURT OF HUMAN RIGHTS

• The question on how far the Court is entitled to
  go in monitoring the laws and practices of
  Contracting States a question about the impact
  of human rights law on national sovereignty and
  the role of international adjudication in
  establishing and enforcing uniform standards
• The Court is required to decide difficult and
  important questions concerning the relationship
  between the individual and the State
• The Court establishes precedents case law

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RESPONSES OF STATES TO FINDINGS OF VIOLATIONS

• In Austria, where the Convention has the rank of
  constitutional law, the Code of Criminal
  Procedures was modified as well as the system of
  legal aid
• Belgium amendments to the Penal Code, its
  vagrancy legislation, and its Civil Code to
  ensure equal rights to legitimate and
  illegitimate children
• Germany the Code of Criminal Procedure
  concerning pre-trial detention was amended
• Ireland court proceedings simplified and civil
  legal aid and advice schemes set up

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Human Rights Act (1998)

• Brought ECHR into domestic law for the UK
• The Act creates a statutory requirement that all
  legislation (past or future) be read and given
  effect in a way that is compatible with the
  Convention

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Human Rights Act (1998)

• Introduces a new ground of illegality into
  proceedings by way of judicial review, namely, a
  failure to comply with the Convention rights
• Any court determining a question that has arisen
  in connection with the Convention should take
  into account the jurisprudence of the Strasbourg
  court

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Human Rights Act (1998)

• When legislation is introduced into Parliament
  for a second reading, the introducing minister
  must make a statement that it is compatible with
  the Convention

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Individual applications Brogan v. United Kingdom

• The Prevention of Terrorism Act (1984) authorized
  arrest without warrant of a person who is
  suspected to be involved with acts of terrorism
  in Northern Ireland provided for detention after
  arrest for not over 48 hours, except if the
  Secretary of State extends this period to not
  more than 5 days
• The applicants neither charged nor brought
  before a court during their detention damages
  (administrative detention for the purpose of
  gathering information)

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Individual applications Brogan v. United Kingdom

• The Court the need for a proper balance between
  the defence of the institutions of democracy and
  the protection of human rights
• Conclusion detention of suspected terrorists for
  6 days and 14 hours and 4 days and 6 hours
  respectively was justified by the public
  emergency
• Domestic margin of appreciation (derogation)
  accompanied by European supervision

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ECHR Summary

• ECHR set up in 1959 The Court is based in
  Strasbourg
• rules on individual or State applications
  alleging violations of the civil and political
  rights set out in the European Convention on
  Human Rights.
• Since 1998 a full-time court individuals can
  apply directly.
• In almost 50 years - more than 10,000 judgments -
  binding on the countries concerned have led
  governments to alter their legislation and
  administrative practice in a wide range of areas.
  
• The Courts case-law makes the Convention a
  powerful living instrument for meeting new
  challenges and consolidating the rule of law and
  democracy in Europe.

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ECHR Important dates

• 5 May 1949 Creation of the Council of Europe
• 4 Nov. 1950 Adoption of the Convention
• 3 Sept. 1953 Entry into force of the Convention
• 21 Jan. 1959 First members of the Court elected
  by the Consultative Assembly of the Council of
  Europe
• efficiency of the Court

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ECHR Summary

• Established 1959 (initially) 1998 (permanent)
• 47 member states of the Council of Europe
• Location Strasbourg, France
• Authorized by European Convention on Human Rights
  Decisions appealed to Grand Chamber of the
  European Court of Human Rights
• Number of positions 47 judges, one from each of
  the 47 member states
• Website http//echr.coe.int

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ECHR Important dates

• 23-28 Feb.1959 The Courts first session
• 18 Sept. 1959 The Court adopts its Rules of Court
• 14 Nov. 1960 The Court delivers its first
  judgment Lawless v. Ireland
• 1 Nov. 1998 Entry into force of Protocol No. 11
  to the Convention, instituting the new Court
• 18 Sept. 2008 The Court delivers its 10,000th
  judgment
• 1 June 2010 Entry into force of the Protocol No.
  14, whose aim is to guarantee the long-term
  efficiency of the Court

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Legal terms

• Derogation lessening or restriction of the
  authority, strength, or power of a law, right or
  obligation
• In the ECHR A provision that enables a signatory
  state to avoid the obligations of some but not
  all of the substantive provisions of the rest of
  the Convention. Art. 15 d. available in time of
  war or other public emergency threatening the
  life of the nation

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Legal terms

• On the merits referring to a judgment, decision
  or ruling of a court based upon the facts
  presented in evidence and the law applied to that
  evidence. A judge decides a case "on the merits"
  when he/she bases the decision on the fundamental
  issues and considers technical and procedural
  defenses as either inconsequential or overcome.

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Put the verbs into appropriate forms

• The European Convention on Human Rights and
  Fundamental Freedoms (1950) ___(draft, passive)
  by the Concil of Europe, a body set up after the
  Second World War to achieve unity among its
  members in matters such as the protection of
  fundamental human rights. It ___(draft, passive)
  in the light of the atrocities that ____(take)
  place before and during the Second World War and
  in its preamble the Convention ___(remind) the
  High Contracting Parties of the common heritage
  of political traditions, ideals, freedom, and the
  rule of law ____(share) by their governments.

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Key

• The European Convention on Human Rights and
  Fundamental Freedoms (1950) was drafted by the
  Concil of Europe, a body set up after the Second
  World War to achieve unity among its members in
  matters such as the protection of fundamental
  human rights. It ws drafted in the light of the
  atrocities that took place before and during the
  Second World War and in its preamble the
  Convention reminds the High Contracting Parties
  of the common heritage of political traditions,
  ideals, freedom, and the rule of law shared by
  their governments.

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Put the verbs in brackets into appropriate forms

• Further, the preamble ___(state) that the
  Contracting Parties should resolve to take steps
  for the collective enforcement of certain of the
  rights ___(contain) in the Universal Declaration
  of Human Rights 1948, this being one effective
  way of ___(ensure) future peace and stability.
  The Convention ___(sign, passive) by the High
  Contracting Parties in 1950, and ___(enter) into
  force in 1953.

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Key

• Further, the preamble states that the Contracting
  Parties should resolve to take steps for the
  collective enforcement of certain of the rights
  contained in the Universal Declaration of Human
  Rights 1948, this being one effective way of
  ensuring future peace and stability. The
  Convention was signed by the High Contracting
  Parties in 1950, and entered into force in 1953.

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Fill in the missing words admissibility
comprises, enforcement, merits, strike out

• The Court lies at the heart of the ____ of the
  Convention and ___of Committees, who consider the
  initial ___ of applications and have the power to
  ____cases from its list, and Chambers of the
  Court, who decide on the admissibility and ___ of
  the application.

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Key

• The Court lies at the heart of the enforcement of
  the Convention and comprises of Committees, who
  consider the initial admissibility of
  applications and have the power to strike out
  cases from its list, and Chambers of the Court,
  who decide on the admissibility and merits of the
  application.

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Fill in the missing words applicants
applications breaches Party victims violation

• Applications can either be brought by member
  states on behalf of individual victims of ____ by
  another High Contracting ___, or from
  individual___ claiming to be victims of a ___ of
  the Convention. With respect to state ___, a
  member state may bring an application against
  another state in relation to individual ____,
  either its own citizens or those of another state.

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Key

• Applications can either be brought by member
  states on behalf of individual victims of
  breaches by another High Contracting Party, or
  from individual applicants claiming to be victims
  of a violation of the Convention. With respect to
  state applications, a member state may bring an
  application against another state in relation to
  individual victims, either its own citizens or
  those of another state.

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claiming, companies, natural, non-governmental,
provides

• Article 34 of the Convention ___that the Court
  may receive applications from any person,
  ___organization, or group of individuals ___to be
  a victim of a violation by one of the High
  Contracting Parties. A person includes both ___
  and legal persons, such as ___, but does not
  include an unborn child.

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Key

• Article 34 of the Convention provides that the
  Court may receive applications from any person,
  non-governmental organization, or group of
  individuals claiming to be a victim of a
  violation by one of the High Contracting Parties.
  A person includes both natural and legal persons,
  such as companies, but does not include an unborn
  child.