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THE EUROPEAN COURT OF HUMAN RIGHTS. Unit 14. Preview. International instruments European organisations European Court of Human Rights: A) Composition and structure B) Jurisdiction C) Proceedings D) Sanctions E) Cases. UNIVERSAL DECLARATION OF HUMAN RIGHTS.

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

  3. UNIVERSAL DECLARATION OF HUMAN RIGHTS • 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. INSTITUTIONAL CONTEXT • The Council of Europe • The European Union

  9. 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: 46 member states • Conditions for admission: a genuine democracy that respects the rule of law and human rights; a party to the Convention

  10. THE EUROPEAN UNION • The Treaty of Paris (1952) establishing the European Coal and Steel Community • The Treaty of Rome establishing the European Economic Community (1957) • The Maastricht Treaty (1993): the European Union • The Lisbon Treaty (2009)

  11. 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

  12. Composition and structure • Number of judges: equal to the number of High Contracting Parties (Member States)

  13. 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

  14. 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 six-year terms and may be re-elected • The term of any judge expires when he or she reaches the age of 70

  15. Structure of the Court • Committees • Chambers • Grand Chamber

  16. Committees • 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

  17. Chambers • 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

  18. Grand Chamber • 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)

  19. 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

  20. 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”

  21. 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

  22. 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”

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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.

  28. Friendly settlement proceedings • 1) mediation between the parties • 2) any friendly settlement should be made “on the basis of respect for human rights”

  29. 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

  30. 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

  31. 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

  32. 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”

  33. 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.

  34. 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

  35. 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

  36. 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

  37. 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

  38. 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

  39. 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

  40. 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

  41. 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

  42. 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 as arisen in connection with the Convention right to take into account the jurisprudence of the Strasbourg court

  43. 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

  44. 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)

  45. 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

  46. 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

  47. Legal terms • On themerits: 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.

  48. 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.

  49. 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.

  50. 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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