1. Course: European Criminal Law SS 2009 Hubert Hinterhofer

2. European Criminal Law – Council of Europe Fundamentals – Eldest political organization in Europe – International Organization – 47 countries of Europe – Not to be mixed up European Council (summits of the Heads of States of the EU) Council of the EU

3. European Criminal Law – Council of Europe Goals of the Council – Promotion of Democracy – Protection of Human Rights Founded: Treaty of London 1949 (10 States) European Convention on Human Rights (ECHR) – 1950 – Multilateral Treaty – First international legal instrument safeguarding human rights – 13 Additional Protocols European Court of Human Rights (1959)

4. European Criminal Law – Council of Europe Structure, Organization and Aims – 47 member states (22 countries from Central and Eastern Europe) – Each MS of the EU is a MS of the Council of Europe – Others e.g.: Russian Federation, Switzerland, Turkey – Based in Strasbourg

5. European Criminal Law – Council of Europe Structure, Organization and Aims – Organization Committee of Ministers – 47 Ministers of Foreign Affairs/Strasbourg-based Deputies – Decision-making body – Governmental body Parliamentary Assembly – 636 members from the 47 national parliaments – Advising body Secretary General and its Office – 5 year term – Directs the activities of the Council

6. European Criminal Law – Council of Europe Structure, Organization and Aims – Organization European Court of Human Rights – Strasbourg – Established by the ECHR – Judicial organ – Admissibility Procedures – Procedures on the merits of the case – Judges elected for a 6-year term (re-election possible) – Judges elected by the Parliamentary Assembly – One judge for each MS (47 judges) – Since 1998: full-time-court with permanent sessions – Goal: Observes the MS regarding the ECHR

7. European Criminal Law – Council of Europe Structure, Organization and Aims – Aims Supports human rights, parliamentary democracy and the rule of law “Human Rights Watchdog” Development of international agreements aiming at the harmonization of social and legal practices – Legal Instruments Treaties/Conventions – About 200 so far – Different topics (e.g.: organized crime, prevention of torture, data protection) Recommendations – Guidelines to Governments of the MS – Different topics: legal mattes, health, education

8. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Committee on Crime Prevention (ECCP) 1958 Coordination of activities regarding crime prevention and crime control Based in Strasbourg Plenary session every year

9. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Committee on Crime Prevention (ECCP) Tasks – Identifies priorities – Proposals to the Committee of Ministers regarding criminal law – Elaborates Conventions, Recommendations and Reports – Organizes criminological research conferences

10. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Convention on Human Rights (ECHR) Signed in 1950 Entry into force: 1953 Legal form – Treaty – Ratification – Transformation into national law of MS: Constitutional Law/ordinary Federal Law

11. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Convention on Human Rights (ECHR) Relation to the EU – Legally Art 6 section 2 TEU, Art 52 Charter of Human Rights: respect for the Human Rights being part of the ECHR Wide coherence – Practically European Court of Human Rights not competent regarding EU-law, only ECJ Different jurisdiction (ECouHR/ECJ) possible Treaty of Lisbon: EU could become part of the ECHR as a whole

12. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Convention on Human Rights (ECHR) Contains a number of Fundamental Rights and Freedoms, such as – Right to life – Prohibition of torture – Right to a fair trial – No punishment without law – Freedom of expression More rights guaranteed in Additional Protocols

13. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Enforcement-machinery on an international level – Established by the ECHR – Set up in 1959 – Strasbourg – Tasks Individual Complaints Inter-State petitions Suggestions (interpretation)

14. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Organization of the Court Since 1998 (Protocol No 11) restructured Complaints referred directly to the Court (Committee of Ministers is not involved any longer) 3 different panels: Board, Chamber, Grand Chamber

15. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Organization of the Court Board > 3 Judges > Admissibility of individual complaints > Unanimity Chamber > 7 judges > Admissibility and Merits of the application > Investigation possible > In Principle: public hearings

16. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Fundamentals – Organization of the Court Grand Chamber > 17 judges > At the request of a party > Interpretation or application of the ECHR > Serious issues of general importance > Final

17. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Consequences of the judgments of the ECouHR – Declaratory judgments Declares that the ECHR has been violated (or not) No competence to quash decisions of domestic courts No competence to abolish or amend domestic legislation

18. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Consequences of the judgments of the ECouHR – Restitutio in integrum Legal obligation to stop the violation of the ECHR Obligation to full restitution Amendment of legal order of MS Release of persons being unlawfully detained – Award for Just Satisfaction Compensation for pecuniary loss Compensation for legal costs Restitution of property

19. European Criminal Law – Council of Europe Activities in Matters of Criminal Law – European Court of Human Rights Consequences of the judgments of the ECouHR – Supervision of the enforcement Committee of Ministers Ensures just satisfaction Activities for necessary changes in the laws of the MS Austria (§ 363a Austrian Code of Criminal Procedure) > Possibility to restart a national criminal procedure > Violation of the ECHR in the Austrian criminal procedure (especially Art 6 ECHR) > Request of the convicted person