Protection_of_human_rights

1. THE PROTECTION OF
HUMAN RIGHTS IN EUROPE
UNIT 23

2. Preview
 UN instruments for the protection of human rights
 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 (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

4. Other UN instruments for the
protection of human rights
 The broadest legally binding human rights instruments
negotiated under the UN auspices:
 1) International Covenant on Civil and Political
Rights, and
 2)the International Covenant on Economic, Social
and Cultural Rights.
 These instruments, adopted by the General Assembly
in 1966, take the provisions of the Universal
Declaration a step further by translating these rights
into legally binding commitments, while respective
committees monitor the compliance of states parties.

5. International Bill of Human
Rights
 The Universal Declaration, together with the two
International Covenants on Human Rights and their
Optional Protocols comprise the International Bill of
Human Rights.

6. 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

7. Historical background
 United Kingdom, France, Belgium, the Netherlands and
Luxembourg invited Ireland, Italy, Denmark, Norway
and Sweden to attend the Conference on the
establishment of a Council of Europe, held at St
James’s Palace in London (3 - 5 May 1949)

8. Historical Background
 These 10 states signed the Statute of the Council of
Europe on 5 May, which entered into force after the
ratification on 3 August 1949.
 As the oldest intergovernmental organisation in
Europe, the Council brings together 47 member states,
including all the member states of the European
Union.
 It has its permanent seat in Strasbourg.

9. Chronology of membership
 1949 Greece and Turkey
 1950 Iceland
 1951 the Federal Republic of Germany
 6 Nov. 1996 The Republic of Croatia

10. Council of Europe:
Institutions
 Committee of Ministers: foreign ministers of
each member state,
 Parliamentary Assembly: MPs from the
parliament of each member state,
 The Congress of Local and Regional
Authorities: promoting local and regional
democracy, social inclusion, etc.
 The Commissioner for Human Rights - an
independent institution, promotes respect for
human rights in member states.

11. Goals of the Council
 The main aims of the Council of Europe are the
protection and support of human rights and
parliamentary democracy

12. The European Convention on
Human Rights
 In order to meet these goals, the Council of Europe
drafted the European Convention on Human Rights
(ECHR) in 1950 and it entered into force 3 September
1953.

13. THE EUROPEAN CONVENTION FOR THE
PROTECTION OF HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS
 Signed in 1950; entered into force in 1953
 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

14. European Convention on
Human Rights
 The signing and ratification of this international treaty
is the main precondition for the membership in the
Council of Europe for new candidates, and all present-
day 47 member states are party to the Convention.

15. 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.

16. 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.

17. 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

18. 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

19. European Court of Human
Rights
 The Convention laid down human rights and
fundamental freedoms in Europe and it has also
established an enforcement mechanism through the
European Court of Human Rights (ECHR).
 As a judicial organ of the Council of Europe, it
provides protection against human rights violations

20. Composition and structure
of the Court
 Number of judges: equal to the number of High
Contracting Parties (Member States)

21. Article 21
Criteria 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

22. 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

23. Structure of the Court
 Single judge
 Committees (3 judges)
 Chambers (7 judges)
 Grand Chamber (17 judges)

24. Single judge
 Admissibility of individual applications

25. 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

26. 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

27. 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)

28. 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

29. 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”

30. 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”

31. Types of applications
 Individual applications
 Inter-State applications
 Most applications before the Court are individual
applications lodged by private persons. A State may
also lodge an application against another State Party
to the Convention; this is called an inter-State
application.

32. 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

33. Conditions of admissibility
 Jurisdiction of the ECHR
 Ratification of the Convention
 Breach of Convention rights
 Victim
 Exhaustion of domestic remedies
 6 month deadline

34. 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

35. Requisites for a complete
application
 the statement of the facts of the case, which show that
the applicant suffered a significant disadvantage
 the statement of alleged violation(s) of the
Convention and/or its Protocols;
 information about available remedies in the country
of the applicant, including appeals.

36. Requisites
 Since there is a six-month time limit to address the
ECHR, it is important to indicate the date of the final
decision of the domestic courts.

37. Admissibility stage
 Valid applications are examined by the
Court that decides on their
admissibility.
 If the Court establishes that there has
been non-exhaustion of domestic
remedies or non-compliance with the six-
month time-limit, or if it finds that any
other admissibility criteria have not
been met, it can declare a case
inadmissible.

38. Merits stage
 This first stage of proceedings before the Court, called
the admissibility stage, is followed by the merits
stage, during which the state party is notified of the
complaint and both parties have the opportunity to
submit their observations, and relevant information or
material to the Court

39. 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

40. 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.

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

42. 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

43. 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

44. 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

45. 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”

46. 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.

47. Judgment
 A judgement delivered by a chamber becomes final
after the expiry of a three-month period during which
the applicant or Government may request the referral
of the case to the Grand Chamber in an appeal
procedure.
 The judgment of the Grand Chamber is final.

48. 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

49. 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

50. 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

51. 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

52. 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

53. 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

54. 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


55. 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

56. 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

57. 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

58. 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)

59. 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

60. 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 Court’s case-law makes the Convention a powerful living
instrument for meeting new challenges and consolidating the
rule of law and democracy in Europe.

61. 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

62. 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
 47 judges, one from each of the 47 member
states
 Website http://echr.coe.int

63. ECHR: Important dates
 23-28 Feb.1959 The Court’s 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

64.  http://echr.coe.int
 https://www.youtube.com/watch?v=EPWGdhgQlgk

65. 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

66. 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.

67. 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.

68. 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.

69. 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.

70. 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.

71. 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.

72. 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.

73. 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.

74. 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.

75. 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.

76. 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.

77. Video links
 https://www.youtube.com/watch?v=EPWGdhgQlgk