Course 5

Question 1

What is the difference between the 2 tracks that are available?

Answer 1

1. Treaty based mechanisms = quasi-judicial bodies with a kind of controlling/complaint mechanism: pretty close to “standing before the court”.
2. Treaty and charter-based mechanisms:
   
   • Human rights council: various monitoring mechanisms amongst which primarily:
     
     1. Universal periodic review
     2. Complaint procedure: you can go there and complain about gross violations, not about an individual incident but more about structural human rights problems.

Question 2

What are the 3 relevant international organisations?

Answer 2

1. Council of Europe: Convention on Human Rights
2. European Union
3. The organisation for security and cooperation in Europe that deals with some Human Rights-related issues.

Question 3

What is the difference between the Council of Europe and European Union?

Answer 3

• Council of Europe has 47 Member States, not the European Union but very confusing. They also share similar values. We should not underestimate the Council of Europe even though it is often overshadowed by the European Union.
• ECHR is in Strasbourg and the European Parliament is in Strasbourg

Question 4

What are the important treaties of the Council of Europe?

Answer 4

• European convention on Human Rights
• European social charter.
• One of the first conventions on data protection, treaty 108,
• Protection of national minorities.

Question 5

What is the European Convention on Human rights?

Answer 5

• That’s a 1950 treaty, a treaty on civil and political rights. Same time as Universal Declaration on an international level: influences the international covenant on civil and political rights.

Question 6

What are the judges doing?

Answer 6

• Growingly associated with an increase of cases, judges were always expanding:
• Marco Duranti: convention is conversative, not in the sense of cultural conservative but in the sense of market-conservative: regional European standard should work as a shield:
  
  • Idea: national politicians will adopt progressive, leftist policies but we should limit that through the European Convention of Human Rights: that is why we are focusing on civil and political rights: right to property, state aid.
• So DNA according to Duranti was rather conservative but it completely changed and now very progressive case law. These tensions are present in the functioning of the whole system.

Question 7

What are the protocols?

Answer 7

1. Protocols that give rights:
   
   • Protocol that adds the right to property, protocol on elections.
   • These protocols will enter into force and require a minimum of ratification that can differ from protocol to protocol: there is no obligation to have a unanimous ratification. That is not necessary. There is no need to make that necessary if you add extra rights. However, applicants can’t complain over a right that was not ratified by a state they’re bringing a case against.
2. Institutional protocols: in order for them to enter into force, they have to be ratified by all states = they change the machinery, reform the functioning of the court or change the preamble so you need unanimity.

Question 8

Who can interpret the convention?

Answer 8

• The courts give very broad interpretation to the convention: it is a convention on classic civil and political rights but you can observe that the court also takes up environmental issues under article 8: defends privacy and family life: very lenient interpretation of that provision.
• Also under the right to life, under positive obligations, there are cases where people complain that they have been victims of natural hazards and explosions = state did not do enough to prevent or protect us from being victims = we do not have a reasonable system of environmental permits: state is liable because even though it is an accident, the state could have done so much more and should have done more.
• It is not always very clear to draw the line between classical, liberal, civil and political rights and environmental issues.
  
  • Eg. case law on collective labour agreements:
    
    • Right to assembly or freedom of association?
    • Civil rights or socio-economic rights?

Question 9

What is the interpretation of the protection of property?

Answer 9

• Protection of property: to what extent does this include lowering of social benefits? Can we simply say social benefits and social allowances are a matter of socio-economic rights and the convention is not dealing with socio-economic rights?
  
  • No. The Court opened this a bit, there is an extension of those rights. That is what we need to know when we talk about the standards in the European Convention on Human Rights and the Protocols adding some extra standards.

Question 10

What is the European Court of Human rights and why do you need it?

Answer 10

• Sanctioning mechanism because you need to be able to enforce your rights, go somewhere and complain, if you don’t = illusion.
• Very basic idea underlying the convention: obligation for both domestic authorities and European Court of Human Rights  States & Court working together. But first up to the national authorities to do their job:

Question 11

What is the idea of subsidiarity?

Answer 11

• Idea of subsidiarity: This comes back in the case law but also in the institutional design when it comes to bringing cases to the Court.
  
  • One of the reasons of the tension between states and the court.
  • But also one of the ways to get out of the conflict because the states could point at the court for a number of reasons saying why it was failing to do its job properly, why it should do a better job, why It’s not efficiently respecting states’ traditions,… States could criticize the court, sometimes for good reasons and sometimes not with fair comments.
• Court then replied: maybe one of the reasons we have such a huge influx of cases is due to the fact that you fail to sufficiently protect human rights in your domestic legal orders.
• Important: we want the national states to comply and to fulfil in a way that complies under the convention. Only if they fail to comply, you can go to the Strasbourg Court.

Question 12

What are the ways to bring a case before the court?

Answer 12

1. Individual applications: the most important measure
2. State applications: inter-state applications:
   
   • Not too many because it is quite an extreme measure. Interesting part of the case law but not representative of the individual applications.

Question 13

What is the individual application?

Answer 13

• State is always the defending party, except from the inter-state applications.
• The mere fact that a state cannot bring a case against the individual before the Strasbourg Court, does not mean that in the national order there cannot be horizontal effects against other persons.
  
  • If something is not illegal under the domestic legal order: you could go to Strasbourg: article 8 of the European Convention.

Question 14

What is the history of the organization of the court?

Answer 14

• You’re an applicant and you go to the court. Before ’98: you had a rather complex system, but was designed in an era before the extension of the council of Europe to the new Member States. There were fewer cases, mostly by states that were established democracies and the problem with established democracies is that not all of them are willing to except strong scrutiny.
• States often stated: “we are long time established democracies and we don’t need these laws that are just controlling us, who do they think we are?” and they have problems with binding international control. What you had is a patchwork of states, some of them recognizing individual petition, some not.
• Two-way mechanism:
• European Commission on Human Rights that would act as a kind of filtering mechanism  then cases could go the Court.
  
  • Same as the inter-American system today.
• Problem: too complex and not fit for a scenario where the Court or a lot of people bring a case to the Court.
• Solution: the 11th protocol

Question 15

What is the 11th protocol?

Answer 15

• 11^th protocol abolished the European Commission on Human Rights:
  
  • One court that decided about the admissibility and the merits of the case. It was a non-permanent Court  changed it into a permanent court.
  • Also abolishing the powers of the Committees of Ministers when it comes to decisions. The Court deals with admissibility, the merits of the case. It’s a permanent Court.
• Also the idea that states could opt in for some mechanisms and not for others was abolished. The idea was that being a member of the Council of Europe means ratifying the European Convention of Human Rights. So if you ratify the European Convention on Human Rights, then you accept the jurisdiction of the Court and the individual standing of the applicant. In one big movement things become clear.

Question 16

What is the admissibility before the court?

Answer 16

• There are a lot of reforms all to do with backlog and influx and trying to do justice to all those applicants because you do not have unlimited means:
• This also explains a lot of the interpretations of the Convention and new approaches to precisely the standing of individuals: because of the influx, the Court is extremely severe when it comes to defining the interest in acting = do you still have it, have you lost if automatically because you did not show up.
  
  • Court has been criticized for being excessively formalist way because they are so completely overcrowded.
  • They say: we do not accept the action popularis = A legal instrument allowing any citizen to denounce before a judge facts relating to public order. But they do not want to be that.
• On the website: guide, checklist on what you need to provide, admissibility list and be very careful. Now, you have 6 months to go to the court and then they can still reply with everything that is missing. Also liability of a lawyer: watch out because people do not allow this anymore.

Question 17

What are the admissibility criteria before the court?

Answer 17

1. The application must be directed against a state party
2. The applicant must be a victim of the allged violation of HR
3. Exhaustion of domestic remedies
4. Victim must have sufferent a significant disadvantage
5. Your case should not be manifestly ill-founded
6. Case cannot be anonymous

Question 18

Who must an application be directed against?

Answer 18

• You can only bring a case against a State Party that is a High Contracting Party = not the US. State party means all organs of the state, whether it is against a decision by a judge, there’s as such no problem.
• Applicant should have been in the jurisdiction that is under the sway, in the power of a state. Jurisdiction is a territorial notion but there are cases where there is an extraterritorial application and this typically is the case whenever you have military actions or there is an occupation:
  
  • Eg: You were in Irak and you suffered in a prison that was controlled by the British soldiers, then you’re supposed to be within the jurisdiction of the UK for that reason, so there are extensions.

Question 19

What is the case Hirsa Jamaa?

Answer 19

• Case Hirsi Jamaa v. Italy: 23 February 2012
• A case on refugees in the Mediterranean Sea, they’re about to drown, so there you have a boat which is under Italian flag, naval, coast guards or whatever and they pick up those poor refugees, they are at that point under the control of the Italian State.
• Italians stated: that was open sea, not our territory so no jurisdiction → but they were under your control so you have jurisdiction for the sake of the application: but here the Court finally said no jurisdiction.

Question 20

What was the case Embassy in Beirut?

Answer 20

• Belgian embassy refuses a permit or visa to Belgium to a Syrian family and there are cases where this is a violation of art. 3 ECHR.
• It is not always very easy, but usually, in most cases, in the bulk of the cases, the state is the territorial conception.

Question 21

Can you bring cases against international organizations?

Answer 21

• You can’t bring therefore cases against international organizations. The international organizations aren’t High Contracting Parties, so you can’t bring cases against, like the EU or the NATO or whatever, you couldn’t do that.
• In the past, there have been cases whereby applicants tried to circumvent that problem, by saying, then I’ll bring my case against all states that are making up that international organization. So instead of bringing your case against the NATO, you bring your case against all States that are involved in NATO.
  
  • Does not work.
• This is not the same that whenever States decide to agree to enter into such an international framework, that they should not respect human rights or that whenever they implement decisions of international organizations they are by that sole of for that sole purpose and reason exempt from scrutiny under the European Convention.

Question 22

What was the Bosphorus case and Nada case?

Answer 22

• Diplomatically difficult but in practice, you cannot simply say as a State: I was acting as an organ of EU law, I implemented EU law so go ask the EU.
• ECHR 30 June 2005, Bosphorus Airways v. Ireland
• ECHR 12 September 2012, Nada v. Switzerland

Question 23

What is the second admissibility criteria?

Answer 23

• The applicant must be a victim of the alleged violation of HR
• Second question: are you a victim? Are you impacted negatively by the act you are complaining of?
• Seems obvious criterium but it is often on a rather ad hoc basis that the court decides to give a NGO exceptionally victim-status although it did not really suffer itself: suppose we have to do with a person that is a weak, vulnerable person that cannot defend him-or herself by no means due to for example cognitive problems or problems that has some pathologies that makes him of her completely unfit to protect his or her own interests, then a NGO, that is acting on behalf of the interests, can. So that is a kind of guardianship that can be accepted. Sometimes guardians will be accepted as acting on behalf of a protected person. When it comes to the right to life, a deceased person won’t be able to defend itself, so their family members, next of kinds are allowed to defend itself.

Question 24

What is the 3rd admissibility criteria?

Answer 24

• State victim, have you exhausted your national remedies? = subsidiarity principle: it is first for the National states, the domestic domestic authorities to protect human rights, then it follows that you as a victim you first have to go to the domestic authorities.
• Also, the idea that Strasbourg wants to give states redress in due time and ability to respond before it comes to Strasbourg. If people would be able to run immediately to Strasbourg, the states wouldn’t even have had the chance to defend themselves or the redress = exhaustion of domestic remedy.

Question 25

is the exhaustion of domestic remedies absolute?

Answer 25

• It is not an absolute: the exhaustion of national remedies is only needed if there are national remedies there are effective (art. 6 and 13 ECHR):
• Or: if you before that there is in theory a national remedy but by no means it’s effective, then you’re exempted from that obligation, but of course you run a risk. Because if the national authorities manage in Strasbourg to convince the court that the remedy that existed, was an effective one, your case is inadmissible.

Question 26

What if there’s unreasonable delay with your domestic remedies?

Answer 26

• If the delay is not reasonable anymore, you can also go to Strasbourg, if you have been waiting for 10 years: a lot of ambiguous case law.
• There is ambiguous case law:
  
  • Sometimes court would say that are national remedies to speed up procedures.
  • Other times: okay, you did your best and we cannot expect you to wait any longer.
• Point remains: if you have not exhausted your national remedies  risk is on you to prove that you have tried your best.

Question 27

Can you bring new arguments before Strasbourg?

Answer 27

• You have to discuss substantially the complaint you are filing in Strasbourg before the national court: you cannot bring a new argument before Strasbourg.
• What is not necessary: you do not need to have mentioned it already before the national court, but you have to complain of the (protected) rights of the article that you didn’t mention, protects.
  
  • If you’re complaining about freedom of expression = that is enough.
  • But if you are going to the court and never mentioned freedom of expression  considered non-exhaustion of national remedies because you did not mention either art. 10 or freedom of expression.
• Important: if there is even the slightest chance of going to Strasbourg = mention the article of the convention in the national proceeding. That is important for lawyers to think ahead strategically.
  
  • Only 5% of cases are declared admissible.

Question 28

What is the fairly new criterium that was introduced to block the influx of cases?

Answer 28

• Victim must have suffered a signficant disadvantage
• As a victim, you also need to demonstrate that you suffered a significant disadvantage. A significant disadvantage was a new, fairly recent criterium that once again was introduced to block the influx of cases = de minimis non curat praetor. You not going to the Strasbourg Court to discuss unimportant issues.

Question 29

What was the Korolev case?

Answer 29

• First criterium where the condition: “Victim must have suffered a significant disadvantage” was applied
  
  • It was someone who won a case against the Russian state that had to pay back some money to the applicant and they refused. The applicant was a dogmatist.
• Court has a margin of appreciation in cases where applicants can complain that their case is not taken seriously by the national courts: but margin of appreciation to waive the criterium where the Court can state that you were not given a fair treatment and that there was not due attention paid to your case so we will pick it up.
• It has hard to qualify a significant disadvantage: 300 euros is for someone a lot of money but not for others. The court is going to handle it by stating: I picked your case because you’re suffered a significant disadvantage. And the other will say: I suffered the same amount and you picked up my case and not hers of his? Not an easy condition.

Question 30

What is another condition?

Answer 30

• Your case should not be manifestly ill-founded:
• Do not mix up admissibility issues and merits: merits = the substantive grounds admissibility.
• Court and Convention states: your case cannot be manifestly ill-founded so it is kind of weird that the Court states: it is inadmissible because on the merits it was manifestly ill-founded.
  
  • Would be weird in the domestic legal order but this court deals a lot of applications brought by non-lawyers.
• Can be a hard criterium for cases like hate speech and freedom of expression. It happens that people were simply complaining of things that fell outside the scope of any of the rights they invoke, therefore it is manifestly ill-founded.

Question 31

Can you bring an anonymous case?

Answer 31

• No: Important case: Blondje against the Netherlands: 15 September 2009.

Question 32

What is the last admissibility criteria?

Answer 32

• You cannot use vulgar language or derogatory language = self-evident: you cannot insult the court, the state parties no matter what you are suffering from: you still have to be respectful and describe the facts, otherwise: inadmissibility issue.