General Principles and Problems of Convention Law Janneke Gerards, Radboud University of Nijmegen, the Netherlands Advanced Course on the International Protection of Human Rights – Abo / Turku 2011 Current Issues Concerning the European Convention on Human Rights

Programme Vertical and horizontal effect Scope and interpretation Positive obligations Exceptions and justification clauses The “margin of appreciation” doctrine

State responsibility Article 1 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. Article 34 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. …

No horizontal effect? Cases 1 and 2 Desirable or not?

Application of the Convention Two stages Definition of scope (“interpretation” – is the Convention applicable?) Review of justification

Scope and definition Determination of scope = interpretation ECHR – many indeterminate notions and concepts – what do they mean? Civil rights and obligations Property Private life

Guiding principles The Convention as “living instrument”  should be interpreted in the “light of present day conditions” Evolutive or dynamic interpretation Central ECHR notions should be given a meaning independent from that prevailing in national states Autonomous interpretation Main objectives of the Convention (democratic pluralism; human dignity and freedom) should guide the ECtHR in its interpretation Teleological interpretation

Methods of interpretation Textual interpretation Systematic interpretation Historical interpretation (reference to travaux préparatoires) Teleological interpretation (reference to objectives of the Convention) Comparative interpretation – the “common ground method”

Common ground method “New” interpretation is only accepted if there is sufficient consensus in the European legal order to support this

The common ground method – why? Fits well with subsidiary position ‘Democratic’ Common ground can be objectively determined: Comparative overviews of national legislation and case-law International law and soft-law European law

Disadvantages common ground method Should the level of protection of fundamental rights depend on European consensus? Difficulties regarding application

Autonomous interpretation Example: case 3 Effects?

Positive obligations Article 1 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. ECtHR: Article 1 guarantees effective protection of human rights: States should not unduly interfere with fundamental rights and freedoms (negative obligations) States should actively protect and promote fundamental rights and freedoms (positive obligations)

Examples of positive obligations Cases 2 & 4

When positive obligations? Fair balance test ECtHR balances state interest not to act against importance of active protection fundamental right Procedural positive obligations Eg. obligations to investigate causes of death of a prisoner; obligation to involve parents in family law proceedings Substantive positive obligations Eg. obligation to protect politicians against death threats or to protect participants in a demonstration

Interim conclusions - scope Indirect horizontal effect – constitutionalisation Proliferation of fundamental rights Thin line between “classic” and social rights Case-law often unpredictable; not always clear and convincing reasoning

Limitations – typology “Absolutely” absolute rights Can never be limited Eg Articles 3, 7 (cf. e.g. Gäfgen) “Relatively” absolute rights Can be limited in case of emergency (cf. Article 15) Eg Article 4 § 2 Rights without express limitation clauses ECtHR accepts implied limitations Eg Articles 6, 14 Rights with express limitation clauses Eg Articles 8-11, Article 1 Protocol No 1

General requirements for limitation “Prescribed by law” “basis in domestic law” substantive requirements: forseeability and accessibility Legitimate aim “Necessary in a democratic society” “pressing social need” “relevant and sufficient” sometimes: test of subsidiarity mostly: test of proportionality or “fair balance”

Example – Case 5 (Evans)

Margin of appreciation doctrine – why? 47 States – 47 different opinions on constitutional values, sensitivities, factual backgrounds National authorities are “better placed” than the ECtHR to decide about the necessity and reasonableness of limitations ECtHR has to take national criticism seriously: Görgülü case (Bundesverfassungsgericht, Germany) – far reaching judgments contrary to national constitutions will not be accepted Judgments bind only the parties to the case – no erga omnes effect; no automatic obligation to adapt national law to judgments against other states States have the obligation to protect fundamental rights and freedom effectively and on a high level

MoA doctrine – why? Need for a flexible instrument to respect national differences and opinions, while protecting fundamental rights

MoA = intensity of review A “certain”, “narrow” or “wide” MoA is allowed to the States Corresponds to Deferential / marginal review (wide margin) Strict scrutiny (narrow margin) Intermediate scrutiny (certain margin)

Intensity of review Should translate in specific standards E.g. “manifestly unreasonable”, “manifest error” May influence burden of proof E.g. applicant must demonstrate lack of necessity of measure in case of a wide margin of appreciation

How to determine the MoA? Common ground argument – consensus on desirability of certain limitations Lack of consensus: wide margin Strong consensus: narrow margin Importance of the fundamental right (“core” or “periphery”)? Political expression vs. television commercials Nature of the aims pursued; policy area (cf better placed argument) Operational choices with economic or social consequences (eg social security, housing) Assessment of facts needed

Nature of the interference Cf preventive prohibition of demonstration with criminal proceedings after demonstration Article 14 (non-discrimination) – ground of discrimination Narrow margin in case of “suspect” grounds, such as race or gender

How to balance these factors? – Case 6 (Niedzwiecki)

Does the MoA work? Criticism? Should the MoA be abandoned?