Introduction to protection of human rights under the Convention for the Protection of Human Rights and Fundamental Freedoms Lucia Berdisová Department of Theory of Law and Constitutional Law, winter term 2018/2019

Systems of human rights protection in Europe national systems of protection (Constitutions or charters – courts and constitutional courts) system under law of EU (protection of 4 freedoms – later Charter of Fundamental Rights of the EU – addressed to the bodies of the EU and when member states are „implementing Union law“ – national courts, CCs or ECJ) system under Council of Europe (ECHR protected by the ECtHR) system under International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and other treaties (usually commissions or committees) – U.N. level typically

System under Convention Council of Europe established in 1949 Institutions: 1. Parliamentary Assembly – no legislatory power - election of Judges of the ECHR 2. Commitee of Ministers – ministers of foreign affairs 3. Secretary General 1953 – Convention in force - multilateral treaty, (starting point was Universal declaration of human rights, not legaly binding, eminent political influence) – generally no new rights and freedom, but new way of protection (Commision, Court till 1998, part-time) since 1998 – Protocol 11 in force – est. „new“ ECHR since 1. June 2010 – Protocol 14 in force – „new“ procedure ECHR – examines complaints by individuals and states)

System under union law European Community/European Union – EC - international organisation when it was est. (1951,1957 3 treaties, 1993 – EU) – but „new legal order of international law“ (Van Gend en Loos, 1963), Lisbon Treaty 2009 – only „one“ EU law; Lisbon Treaty cancelled communities – there is only EU now etc. Institutions: 1. European Parliament 2. European Commision 3. Council of EU/Council of ministers 4. European Council – former only sole institution of EU 5. Court of Justice of EU - Court of Justice, General Court and The Civil Servis Tribunal

System under union law Court of Justice of EU – action for annulment (community act), action for failure to fulfil obligation, action for failure to act, action for compensation of damage... locus standi for natural and legal persons is narrow protects also constitutional principles on which union law is based (so also rights protected by ECHR) double protection – „so lange“ principle in Bosphorus decision of the ECHR from 2005 – Bosphorus presumption of equal protection of HR under Convention and in EU

EU acceding to the Convention? Art. 6 of the TEU section 2 and 3: „The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.“

EU acceding to the Convention? Opinion 2/13 of the CJEU: drafted accession agreement that took 3 years to complete would violate principle of the autonomy of the EU law and primacy of the EU law among many other problems even one with the protocol 16 (in force since August 18) and advisory opinions of the ECtHR on interpretation and application of rights and freedoms in the Convention - as to CJEU the procedure conflicts with preliminary ruling procedure before it (for summary of problems and discussion see e.g. T Lock, ‘The Future of the European Union’s Accession to the European Convention on Human Rights after Opinion 2/13: is it still possible and is it still Desirable?’ (2015) 11 European Constitutional Law Review 239)

Complaint before ECtHR without Protocol 14

REGISTRY JUDGE RAPPORTEUR INADMISSIBLE Individual complaint Inter-state complaint REGISTRY of ECHR JUDGE RAPPORTEUR (nominated by President of Chamber) Complaint is INADMISSIBLE (the end, finito...)

JUDGE RAPPORTEUR COMMITEE ( 3 judges) Complaint is INADMISSIBLE (the end, finito...) Complaint is ADMISSIBLE Attempt to reach FRIENDLY SETTLEMENT

(supervision of execution) Attempt to reach FRIENDLY SETTLEMENT CHAMBER (7 judges) O.K. Case is stoked out of the list (the end) judgement of the Chamber GRAND CHAMBER (case is difficult) Complaint is INADMISSIBLE (the end, finito...) Commitee of Ministers (supervision of execution) PANEL of FIVE (5 judges of Grand Chamber), APPEAL

(supervision of execution) GRAND CHAMBER judgement of the G.Ch. no appeal Commitee of Ministers (supervision of execution)

Complaint before ECtHR as to Protocol 14 plus admissibility as to Protocol 16

Protocol 14 (signed 2004, in force from June 2010) change of the procedure before the court and change of the rules of admissibility one-judge decision on inadmissibility (one judge may decide whether the complaint is inadmissible) committees may bring judgement as to the merits if the case falls within the „well established case law“ ad hoc judges attempt to reach friendly settlement at any stage

incl. rapporteurs assisting judges Individual complaint Inter-state complaint REGISTRY of ECHR incl. rapporteurs assisting judges JUDGE RAPPORTEUR (nominated by President of Chamber) Complaint is INADMISSIBLE (the end, finito...)

JUDGE COMMITEE INADMISSIBLE Complaint is judgement CHAMBER RAPPORTEUR Strike out of the list COMMITEE ( 3 judges) Complaint is INADMISSIBLE (the end, finito...) Complaint is ADMISSIBLE judgement if matter falls under well established case law CHAMBER (7/5 judges)

(supervision of execution) CHAMBER (7/5 judges) judgement of the Chamber GRAND CHAMBER (case is difficult) Complaint is INADMISSIBLE (the end, finito...) Commitee of Ministers (supervision of execution) PANEL of FIVE (5 judges of Grand Chamber), APPEAL

(supervision of execution) GRAND CHAMBER judgement of the G.Ch. no appeal Commitee of Ministers (supervision of execution)

Admissibility criteria victim of violation of Convention exhaustion of all (effective) domestic remedies 6 months period non-anonymous complaint is compatible with Convention or protocols (ratione temporis, r.loci, r.personae, r.materiae) not manifestly ill- founded no abuse of right of application matter has been not been examined by the Court yet (or it contains new information) applicant has suffered a significant disadvantage unless respect for human rights (unless the case was not duly considered by a domestic tribunal) – new case-law by chambers must be developed

Protocol 15 (signed 2013, not yet in force) explicitly mentioning principle of subsidiarity explicitly mentioning principle of the „margin of appreciation“ 6 to 4 months as to complaint time limit changing „significal disadvantage“ condition introduced by P 14 retirement age changed for maximum introduction age ratified by 44 member states (Sept. 2018) – all contracting parties condition to enter into force

Protocol 16 (signed 2013, in force from August 2018) advisory opinions procedure – „advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto“ – only as to cases pending before them opinion provided by the Grand Chamber (separate opinions allowed) ratified by 11 member states (Sept. 2018) – 10 contracting parties condition to enter into force

Judges of the ECtHR number of judges = number of member states of the CoE (47 as to date) must be of high moral character plus qualified to high judicial office or recognized jurists elected by Parliamentary Assembly from 3 candidates nominated by member states (in SR, candides nominated by Judicial Council and approved by government) elected for period of 9 years, no re-election, before Protocol 14 elected for 6 years with possible re-election may be dismissed by 2/3 of judges of ECHR organisation –single-judge formation (new), commitees (3 j.), chambers (7 j., possibly 5 j.), grand chamber (17 j.)

Important links ECHR - http://www.echr.coe.int/Pages/home.aspx?p=home HUDOC database - https://hudoc.echr.coe.int/eng#{%22documentcollectionid2%2 2:[%22GRANDCHAMBER%22,%22CHAMBER%22]} Reports of judgements and cases – http://www.echr.coe.int/Pages/home.aspx?p=caselaw/reports &c= Blogs: http://echrblog.blogspot.sk/ http://www.iconnectblog.com/ https://strasbourgobservers.com/