UNIT 13

The European Court of Human Rights

The Council of Europe the first and most widely based European political institution

an international intergovernmental organization established on 5 May 1949 by 10 countries; based in Strasbourg comprises 47 member states; covers virtually

the entire European continent (800 million people)

Main bodies: Committee of Ministers Parliamentary Assembly European Court of Human Rights Congress of Local and Regional Authorities The Commissioner for Human Rights The Conference on International NGOs

The Council of Europe – main goalsPrimary aim

to create a common democratic and legal area throughout the whole of

the continent, ensuring respect for its fundamental values:

Human Rights... Democracy... Rule of Law

Main goals safeguarding human rights, democracy and the rule of law promoting social and economic rights combating racism, xenophobia and intolerance promoting cultural diversity in Europe finding common solutions to society’s problems developing democratic citizenship through educational, youth,

sport and heritage initiatives

It is active in all areas affecting European society except defence.

The European Convention on Human Rights – ECHR

Official name = The Convention for the Protection of Human Rights and Fundamental Freedoms

- an international treaty - leading international legal instrument safeguarding human rights

- signed on 4 November 1950 in Rome by members of the Council of Europe (15 countries)

- entered into force on 3 September 1953- today - 47 state parties/contracting parties –

signatories to the convention- the Convention and additional protocols oblige

signatories to guarantee various civil and political freedoms

The Convention SECURES in particular:

Right to life Right to liberty and security Right to a fair hearing/trial Right to respect for private and family life Freedom of expression Freedom of thought, conscience and religion Protection of property Right to marry

The Convention PROHIBITS in particular:

torture and inhuman or degrading treatment or punishment

slavery and forced labour, arbitrary and unlawful detention discrimination in the enjoyment of the rights

and

freedoms set out in the Convention

Protocols to the Convention

texts which add one or more rights to the original Convention or amend certain of its provisions

protocols which add rights to the Convention are binding only on those States that have signed and ratified them (a State that has merely signed a protocol without ratifying it will not be bound by its provisions)

to date - 14 additional protocols have been adopted

ECHR- Application and Enforcement

-the Convention is applicable at national level

-it has been incorporated into the legislation of the States Parties

Courts with the jurisdiction to enforce the Convention:

domestic courts the European Court of Human Rights

The Convention evolves …

it evolves - by means of the interpretation of its provisions by

the European Court of Human Rights -through its case-law the Court has made the Convention a living instrument

- when protocols add new rights: (eg. Protocol No. 13 concerning the abolition of death penalty in all circumstances, or Protocol No. 12 on non-discrimination)

The European Court of Human Rights – Establishment and Aim judicial organ of the Council of Europe set up under the Convention and its Protocols in 1959

AIM = to ensure the observance of the engagements undertaken by the Parties

- supervises implementation of the European Convention on Human Rights in member states

- examines violations of the European Convention on Human Rights based in Strasbourg in the Human Rights Building

JURISDICTION- to resolve all disputes concerning the interpretation and

application of

the Convention and the protocols

Judges of the Court

the number of judges on the Court equals the number of Contracting Parties (47 at present)

elected by the Parliamentary Assembly of the Council of Europe from lists of three candidates proposed by each State for a renewable term of 9 years

sit on the Court in their individual capacity - hear cases as individuals and do not represent their States - totally independent and impartial

Judges - Terms of office and dismissal (Article 23)

1 The judges shall be elected for a period of nine years. They may not be re-elected.

2 The terms of office of judges shall expire when they reach the age of 70.

3 The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration.

4 No judge may be dismissed from office unless the other judges decide.

Judges to the CourtCases are heard by judges sitting in:

1. Single-judge formation – (rules on admissibility of individual applications)

2. Three-judge Committees – (rule on admissibility; declarations of inadmissibility by a unanimous vote)

3. Seven-judge Chambers (rule on the admissibility and merits of a case - by a majority vote)

4. The Grand Chamber of 17 judges (the President of the Court , the Vice-Presidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court)

- hears cases referred to it either

1-after relinquishment by a Chamber or

2-when a request for referral has been accepted

Relinquishment of jurisdiction to the Grand Chamber

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or

where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court,

the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects

Applications

two types of application:

A) individual applications (lodged by any person, group of individuals, company or NGO claiming to be the victim of a violation by one of the Contracting Parties of the rights set forth in the Convention or the protocols)

A) inter-state applications (brought by one State against another – any Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols by another High Contracting Party)

Procedure before the Court

cases can be brought directly by individuals (assistance of a lawyer is not necessary at the start of the proceedings)

it is sufficient to send the Court a duly completed application form with the requisite document

the registration of an application by the Court is no guarantee that it will be admissible or successful on the merits

“easy” access to the Court - no fees for proceedings before the Court

the procedure is adversarial and public

Procedure before the Court two main stages

1) ADMISSIBILITY STAGE (certain requirements must be met)

2) MERITS STAGE (examination of the complaints / actual violations of rights from the convention)

- committee finding that an application is not admissible will declare the

case inadmissible

OR- a Chamber will give notice of the case to the respondent Government for their

observations

- written observations are submitted by both parties

- the Court decides if it is appropriate to hold a public hearing in the case

- the Chamber delivers a judgment that will become final only 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 for fresh consideration)

Admissibility criteria

domestic remedies must be exhausted an applicant’s allegations must concern one or more

of the rights defined in the Convention applications must be lodged within six months

following the last judicial decision in the case the applicant must be, personally and directly, a

victim of a violation of the Convention applications can only be lodged against one or more

of the States Parties to the Convention (not against any third State or against an individual)

Judgements

judgments finding violations are binding on the States concerned and they are obliged to execute them – the execution of decisions is controlled by the Committee of Ministers of the Council of Europe

inadmissibility decisions by Committees and Grand Chamber judgments are final and cannot be appealed against

the parties have three months following the delivery of a Chamber judgment to request referral of the case to the Grand Chamber for fresh consideration

The Languages of the Court

official languages – English and French

applications – drafted in one of the official languages of the Contracting States

when application declared admissible- the procedure continues in the Court’s official languages

exceptionally President of the Grand Chamber may allow use of the language of application

CROATIA and the Council of Europe

- a member state of the Council of Europe since 1996 (accession on 6 November 1996)

- Committee of Ministers – representative Vesna Pusić (Minister of Foreign and European Affairs)

- Parliamentary Assembly - 5 representatives + 5 substitutes

- ratification of the European Convention on Human Rights on 5 November 1997

- judge to the European Court of Human Rights – Ksenija Turković (professor at the Faculty of Law in Zagreb)

Reading comprehension:

1. Read the text on p. 60, 61 and do the following

exercise:

Exercise 1, p. 62 2. Translate Article 6 from the European

Convention on Human Rights into Croatian.

Essential expressions

to come/enter into force = stupiti na snagu

Member states of the Council of Europe = zemlje članice Vijeće Europe

state parties / contracting parties of a convention/a treaty / signatories to the convention = zemlje potpisnice konvencije / međunarodnog ugovora

to safeguard = štititi, osigurati, jamčiti

to accede – accession = pristupiti, pridružiti se – pristupanje, pridruživanje

to ratify - ratification = ratificirati - ratifikacija

a complaint = žalba

to breach / violate / infringe a right – a breach / violation / infringement = kršiti – krštenje prava

to observe a right – observance = poštivati – poštivanje prava

to draft an application = sastaviti zahtjev to lodge an application(with the Court) =

podnijeti zahtjev bring a case / an application = podnijeti

zahtjev to declare a case admissible/inadmissible

= proglasiti predmet osnovanim/neosnovanim

Three-judge committee – odbor od tri suca

Seven-judge Chamber – Vijeće od sedam sudaca

To execute a judgement = provesti presudu

merit of case = osnovanost zahtjeva relinquishment = ustupanje nadležnosti referral of the case = podnošenje

predmeta (Velikom vijeću) to refer a case = podnositi/proslijediti

predmet term of office = mandat to apply / to be applicable =

primijeniti/primjenjiv, važeći

Vocabulary practice - Collocations

What do we do with RIGHTS? Sort the verbs according to their POSITIVE or

NEGATIVE meaning? to protect; to observe; to violate; to diminish; to acquire;

to guarantee; to abuse; to grant; to respect; to restrict; to ensure+ -

Vocabulary practice – Word formation Turn the following verbs into nouns.

VERB NOUN to accede accession to apply to admit to enforce to enter into force to expire to implement to observe to ratify to refer to violate

Vocabulary practice – Answer key

VERB NOUN to accede accession to apply application to admit admission to enforce enforcement to enter into force entry into force to expire expiry to implement

implementation to observe observance to ratify ratification to refer referral to violate violation

Case analysis

Rajak v. CroatiaRead the judgement and discuss the following

questions with your partner.

1. What was Rajak’s complaint about?

2. What did the Court find concerning the conduct of the Croatian authorities?

3. Which rights were violated?

Translation

Translate Protocol No. 13 to the Convention

for the Protection of Human Rights and Fundamental Freedoms