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 goals Primary 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 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 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 Court Cases 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 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 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 / me đ unarodnog 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. Croatia Read 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