The European Human Rights System Dr Daria Davitti Lund University, Law Faculty 21 November 2018

Do you recognize this building?

And what about this building?

Some differences: Instruments EU Charter of Fundamental Rights: Sets out basic rights that must be respected both by the EU and the MS when implementing EU law. Legally binding instrument Not a primary source of EU law; binding on EU MS but, arguably, broad discretion vis-à-vis the four cardinal EU freedoms 4 EU freedoms? Free movements of goods, services, capital & persons

Instruments (cont’d) The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (EHCR), entered into force in 1953. More details on this in later slides…

More differences? Courts CJEU: is based in Luxembourg and ensures compliance with EU Law and rules on the interpretation and application of the treaties establishing the EU ECtHR: set up in 1959, based in Strasbourg, rules on individual or inter-state applications alleging violations of the rights set out in the ECHR (Not a Court): EU Fundamental Rights Agency

EU Fundamental Rights Agency (FRA) Mandate (i.e. objective, scope and tasks of the FRA are set out in Council Regulation (EC) No. 168/2007 Art 2: To provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights.

EU Fundamental Rights Agency (FRA) – (cont’d) Main tasks of FRA: collecting and analysing information and data; providing assistance and expertise; communicating and raising rights awareness. Beyond EU institutions, close links with: other international organisations, e.g.Council of Europe, UN and the Organization for Security and Co-operation in Europe (OSCE); governments, civil society, academic institutions, equality bodies and National Human Rights Institutions (NHRIs) 

Back to ECHR – Which Rights? Gives effect to certain rights in UDHR Protected rights include: right to life (Art 2); to a fair trial (Art 6); to respect private and family life (Art 8); freedom of expression (Art 10); of thought, conscience and religion (Art 9); protection of property (Art 1 of Protocol 1). Prohibits, in particular: torture and inhuman or degrading treatment or punishment (Art 3); slavery and forced labour (Art 4); arbitrary and unlawful detention (Art 5 on liberty and security); discrimination in enjoyment of rights (Art 14).

ECHR – Which rights? (cont’d) Static or evolutionary rights? A ‘living instrument’ How is it a ‘living instrument’? By means of interpretation by ECtHR Through Protocols (eg Protocol No.13, July 2003, on abolition of death penalty in all circumstances; and No. 12, April 2005, on non-discrimination) Establishes an international judicial organ with jurisdiction to decide against state parties in breach of the ECHR (Arts 19-51)

Who is protected? Approx. 820m potential applicants, i.e. people living in the 47 state parties But more potential applicants: also non-Europeans, who are within the jurisdiction of the state parties Hirsi Jamaa and Others v Italy In exceptional cases, scope of ECHR can stretch beyond Europe’s borders: see Al-Skeini and Others v UK Acts committed by another state: El-Masri v Former Yugoslav Republic of Macedonia

Who can bring a case? ECtHR has jurisdiction to hear allegations of violations of ECHR on receiving Individual applications lodged by any person, group of individuals, company or NGO Inter-state applications, brought by a state against another state Since establishment, applications mostly lodged by individuals NB: only against state parties (not third states or individuals, including companies)

Conditions of Admissibility Most applications (90% of 50,000 pa) fail at the admissibility stage Conditions (six of them): Against states which have ratified ECHR Alleged breach of right protected by ECHR Victim status, plus significant disadvantage Events occurred after ratification by state concerned Exhaustion of domestic remedies Within 6 months from final decision in domestic proceedings

Challenges ahead... Security (endless source of cases) Austerity (withdrawal of disability benefits Béláné Nagy v Hungary [2016]); see e.g. UN SR Philip Alston’s report on poverty in UK Technology (e.g. secret surveillance, see Big Brother Watch and Others v UK [2018]) Jurisdiction (of course!) in cases of transnational violations (pending cases against Italy for pull-backs by Libya) and much, much more…

And to conclude, on a cheerful note… https://www.youtube.com/watch?v=ptfmAY6M6aA