English for Lawyers 2

1. English for Lawyers 2 Lecturer: Miljen Matijašević e-mail: miljen.matijasevic@gmail.com G10, room 6, Tue 11:30-12:30 Session 4

2. Today’s session: • Revision of the last session • The Council of Europe • The European Court of Human Rights • Case Study

3. Revision of the last session TheConstitution / Judiciary in the Republic of Croatia

4. Revisionofthelastsession • How do we define a constitution? • When was the Croatian Constitution adopted and how many times has it been amended? • According to the Constitution, what sort of state is the Republic of Croatia? • What are some of the fundamental features of the RC, laid down in the basic provisions of the Constitution?

5. Revisionofthelastsession • Name some basicrightsprovided for inthe C.? • Whatgovernmentinstitutions are envisagedintheConstitution? • What do youknowabouttheConstitutional Court? • What do youknowaboutthe 2010 amendments to theConstitution?

6. Revision of the last session • Describethe court networkofthe RC! • How many Supreme Court judges are there and how is the court organised? • What do municipal and county courts deal with? • Do county courts have first instance jurisdiction? • What is thejurisdictionofcommercial courts? • Who appoints judges in Croatia? • What are the mandatory requirements for judicial office?

7. The Council of Europe

8. The Council of Europe • International association comprising 47 member countries, founded in 1949 • Observer countries: The Holy See, the USA, Canada, Japan, Mexico • Applicant country: Belarus • Located in Strasbourg • Its aim is to develop and promote democratic principles based on the European Convention of Human Rights (key document of the COE) and other reference texts on the protection of individuals

9. The Council of Europe

10. The Council of Europe Aims: • to protect human rights, pluralist democracy and the rule of law;  • to promote awareness and encourage the development of Europe's cultural identity and diversity; • to find common solutions to the challenges facing European society: such as discrimination against minorities, xenophobia, intolerance, bioethics and cloning, terrorism, trafficking in human beings, organised crime and corruption, cybercrime, violence against children; • to consolidate democratic stability in Europe by backing political, legislative and constitutional reform. 

11. The Council of Europe - history • Idea of a united Europe was born after WW2, when the continent was devastated by the war, and when there was a shared strong desire for the horrors of war never to happen again • First suggested by Winston Churchill in his speech in Zürich in 1946, when he suggested building ‘a kind of United States of Europe’ • Various initiatives were brought together into the International Committee of the Movements for European Unity • It organised the Hague Congress (7 May 1948), remembered as "The Congress of Europe".

12. The Council of Europe - history • The Hague Congress (1948) • Over 1,000 delegates from 20 countries • Adopted a series of resolutions which lay the foundations of the Council of Europe: • creation of an economic and political union to guarantee security, economic independence and social progress • the establishment of a consultative assembly elected by national parliaments • the drafting of a European charter of human rights and the setting up of a court to enforce its decisions

13. The Council of Europe - history • Two ideas for realization of the principles: a federative union of states (supported by Belgium and France), and a form of intergovernmental co-operation (preferred by the UK) • Compromise - the Council of Europe consisting of: • a committee of foreign ministers, to meet in private (with decision-making powers) • a consultative body (members chosen by parliaments), to meet in public

14. The Council of Europe - history • Statute of the Council signed in 1949 by 10 founding countries in London • Soon followed by the signing of the European Convention on Human Rights, which entered into force in 1953 • References to the economic and political union declared at the Hague Congress were dropped in the Statute • This gave rise to the development of initiatives which led to the formation of the European Communities

15. The Council of Europe - history • More countries joined in the following decades • 1990s were marked by the joining of Eastern European states, including former Soviet states and Croatia

16. The Council of Europe - history • Today’s institutions of the COE: • Committee of Ministers • Parliamentary Assembly • Congress of Local and Regional Authorities • Secretary General • Official languages: English and French

17. The European Court of Human Rights Unit 14

18. European Court of Human Rights • Set up under the European Convention on Human Rights (a.k.a. Convention for the Protection of Human Rights and Fundamental Freedoms) • First public hearing took place in 1960 (Lawless v Ireland) • Instituted as a permanent court in 1998 • The permanent judges now elected by the Parliamentary Assembly

19. European Court of Human Rights • Direct access for 800 million European citizens • There are 47 judges (equal to the number of member countries), but there is no nationality requirement • Judges supposed to be impartial, not represent interests of their home country

20. European Court of Human Rights • Judges elected for a six-year term, but may be re-elected until they reach the age of 70 • Plenary Court – elects office-holders, i.e. The President, the two Vice-Presidents and the Section Presidents (current President: Jean-Paul Costa)

21. European Court of Human Rights • Each Section contains Chambers, consisting of seven judges, who make most judgements • Committees of three judges assess applications and assess their admissibility • Recent change: admissibility can be assessed by a single judge

22. European Court of Human Rights • The Grand Chamber (17 judges) deals with cases that raise a serious question of interpretation or application of theConvention, or a serious issue of general importance • A Chamber may relinquish jurisdictionin a case to the Grand Chamber at any stage in the procedure before judgment, as long as bothparties consent.

23. European Court of Human Rights • Any Contracting State (State application) or individual claiming to be a victim of aviolation of the Convention (individual application) may lodge directly with the Court inStrasbourg an application alleging a breach by a Contracting State of one of the Convention rights.

24. European Court of Human Rights • REQUIREMENT: theapplicant must haveexhausted all available legal optionsintheir own country • theauthority for theviolationsofConventionrightsin Croatia: • theConstitutional Court ofthe RC

25. European Court of Human Rights • The procedure before the European Court of Human Rights is adversarial and public.It is largely a written procedure. • Hearings, which are held only in a very small minority ofcases, are public, unless the Chamber/Grand Chamber decides otherwise on account of exceptional circumstances.

26. European Court of Human Rights • Individual applicants may present their own cases, but they should be legallyrepresented once the application has been communicated to the respondent Government • The Council of Europe has set up a legal aid scheme forapplicants who do not have sufficient means.

27. European Court of Human Rights • Official languages: English and French, but applications may be submitted in any of the official languages of the Contracting States • Once the application has been declared admissible, one of the Court’s official languages must be used, unless thePresident of the Chamber/Grand Chamber authorises continued use of the language of the application.

28. European Court of Human Rights • If a Committee decides by a unanimous vote that an application is admissible, it is referred to a Chamber • Application referred to the respondent State, which is asked to address the issues of admissibility and merits that arise, and the applicants’ claims for just satisfaction

29. European Court of Human Rights • Parties also invited to settle • Chamber decides on admissibility and merits by a majority vote • Dissenting opinions may be appended to the judgement

30. European Court of Human Rights • A Chamber judgment becomes final three months after its delivery. • Within that time,any party may request that the case be referred to the Grand Chamber if it raises a seriousquestion of interpretation or application or a serious issue of general importance.

31. European Court of Human Rights • If the partiesdeclare that they will not make such a request, the judgment will become final immediately. • Judgements of the Grand Chamber are final.

32. European Court of Human Rights • Supervision of the execution of judgements conducted by the Committee of Ministers. • The State in breach of the Convention must take appropriate remedial measures to comply with the Court’s judgement

33. COE and ECHR on the Internet www.coe.int Read more about the Council of Europe, the Court Judgements available online

34. Key vocabulary 1 member country applicant country observer country the rule of law cultural identity and diversity human trafficking organised crime corruption intergovernmental co-operation Committee of Ministers Parliamentary Assembly

35. Key vocabulary European Convention on Human Rights Contracting State impartial office-holder Chambers the Grand Chamber application (to the Court) to assess admissibility respondent state dissenting opinion final decision

36. Case study ECHR: Medić v. Croatia

37. Medić v. Croatia On 3 June 1994 the applicant applied for the enforcement of a final judgment of the Omiš Municipal Courtordering a certain N.B. to pay him a sum of money. An enforcement order to that effect was issued on 14 September 1994. The enforcement order was to be carried out by selling a real estate owned by N.B. at a public tender. On 26 March 1996 a certain M.B. objected to the enforcement proceedings claiming that she was the co-owner of the real estate in question. The Municipal Court instructed M.B. to institute civil proceedings whereby she would claim her ownership and consequently the Municipal Court stayed the enforcement proceedings pending the outcome of these civil proceedings.

38. Medić v. Croatia N.B. and M.B. went on file lawsuits against the applicant. A decision was reached in this civil lawsuit by the Municipal Court, but was quashed by the Split County Court in 2004 and the case was remitted for retrial.The applicant lodged a complaint to the Constitutional Court regarding the length of enforcement proceedings. In 2006 the Constitutional Court ruled in the favour of the applicant and awarded him HRK 7,800 in compensation, and ordered the Split County Court to accelerate proceedings relating to enforcement.

39. Medić v. Croatia The Split County Court instructed the Omiš Municipality Court to resolve the civil lawsuit filed by N.B. The Court dismissed the case and reached a decision regarding enforcement, which became final on 8 January 2008. However, the enforcement is still pending. It had been 14 years since the original decision on enforcement had been reached (11 of which were after the RC ratified the Convention).

40. Medić v. Croatia Medić claimed HRK 510,542.80 of pecuniary damage and EUR 16,000 of non-pecuniary damage. The ECHR granted him EUR 3,650 of non-pecuniary damage and EUR 550 for costs.