HUMR5140 Introduction to Human Rights Law Autumn 2014 Lecture 8: Regional Human Rights Systems: Europe

This lecture Outline of the European human rights system Focus on certain essential features: Margin of appreciation, proportionality

Many different European regimes The European Social Charter EU’s Charter of Fundamental Rights Other CoE treaties OSCE The European Convention on Human Rights Mainly civil and political rights Some absolute rights, but mainly relative rights Positive and negative obligations An impact of ESC rights Integrated interpretation

Three threads in the creation and development of the ECHR 1.European integration not only a matter of technical needs and economic interests; the ECHR embodies a system of liberal values 2.The continuing concern for the protection of human rights 3.Human rights as a tool to spread democracy to Central and Eastern European states

A quick history: The original control mechanisms – until 1998 A tripartite system The European Commission on Human Rights The European Court of Human Rights The Committee of Ministers Consider the admissibility of petitions Establish the facts Promote friendly settlements Give opinions of violations Give final and binding judgments in cases referred to it Give final and binding decisions in cases not referred to the Court A judicial bodyA political body

The revised control mechanisms Protocol No. 11, restructuring the control machinery, adopted on 11 May 1994, entry into force on 1 November 1998 o A sidestep: Additional protocols: Do not amend the original text, but introduces additional rights. Do not require consensus; become binding for States that ratify Amending protocols: Amend the original text (“Since its entry into force on 1 November 1998, this Protocol forms an integral part of the Convention”). Require consensus, do not enter into force until all Contracting States have consented

Protocol no. 11 The European Commission on Human Rights The European Court of Human Rights The Committee of Ministers A tripartite system Now established as a permanent body Assumed (most of) the responsibilities of the Commission The competence of the Court became compulsory New, reduced role: To supervise compliance with decisions by the Court

Attempt at improvement: Protocol No. 14, entry into force 1 June Aims to guarantee the long-term efficiency of the Court by optimising the filtering and processing of applications New judicial formations to deal with the simplest cases A new admissibility criterion (“significant disadvantage”) Judges’ terms of office to be extended to nine years without the possibility of re-election. A dramatic increase in cases A victim of its own success? Applications received Applications disposed of Annual deficit Backlog 31 December 61,30064,500 41,18352,188 20,10012, , ,600 More than 90 % of cases are declared inadmissible 2010: 38, : 50,677

Applications received Applications disposed of Annual deficit Backlog 31 December 61,30064,500 41,18352,188 20,10012, , ,600 More than 90 % of cases are declared inadmissible 2010: 38, : 50, , ,700 65,150 87, : 86,201

The life of an application Admissibility Substantive requirements Substantive requirements Procedural requirements Procedural requirements Jurisdiction Grand Chamber Relinquishment Referral (appeal) Referral (appeal)

Fundamental principles of interpretation The European Court of Human Rights The Vienna Convention on the Law of Treaties A strong principle of effectiveness A clear evolutive interpretation National courts For national law to decide A tendency to apply the same method as the ECtHR Challenge: The evolutive interpretation «No more, but certainly no less» «No less, but certainly no more»

Pilot-judgment procedure Introduced in 2004 as a means of addressing systemic problems in Contracting States which result in multiple applications to the Court One (or a few) case is given priority treatment, while other applications are adjourned until the pilot case is decided Justification: 1.Speedier redress for victims 2.The systemic problem is redressed within the national legal order under guidance from the Court 3.A large number of repetitive cases may be removed from the Court’s docket Legal basis: Now «rule 61»

Examples of pilot-judgments Broniowski v. Poland (2004): Failure to compensate loss of property o See paras : The pilot-judgment procedure explained Burdov v. Russia (2009): Failure to enforce domestic court decisions Rumpf v. Germany (2010): Length of proceedings

Enforcement Art. 46 Binding force Execution of judgments «undertake to abide by the final judgment» Committee of Ministers Referral to Court Interpretation procedure Infringement procedure

Reform issues InterlakenBrightonIzmir Protocol no. 15Protocol no. 16

Let’s discuss… …the margin of appreciation