Enforcements of Rights and Freedoms Flashcards
If a human rights issue is in question, and domestic law does not provide a solution…
then a claim can be brought before the EctHR.
Claims Before the ECtHR:
Court based in France with judges representing each of the member states.
Judges act independently and not in interest of own state.
Three judges will first hear its merits before agreeing or not, to fully hear the complaint.
Claims Before the ECtHR: If a member state has breached an Article
they have the power to award compensation or other ‘just satisfaction’ to the complainant.
Court relies heavily on the cooperation of the member states to be bound by its decisions, but the Court cannot force the state to change its domestic law.
Bringing a Claim
- Once a citizen has exhausted all means of redress for their complaint in their domestic courts, a petition can be made by the citizen to the European Commission of Human Rights.
- Commission will investigate whether citizens’ petition has any merits before agreeing to pass the petition on to the full court.
- Petition must be made usually within 6 months from the time being denied redress from the last court in their state.
- If Commission feels the petition is legit, they will generally seek cooperation of the Member State’s Gov to resolve the issue amicably; If it can’t then the case will be sent to Court to decide whether the citizens rights have been breached.
Role of Domestic Courts:
If a complaint is unsuccessful with domestic law or feels that such laws are incompatible with the Convention, a claim can be made by petition to the EctHR.
Under HRA 1998, citizens can bring a claim in domestic courts to argue that a public body has breached one or more of their rights under the Convention and seek redress. If the court agrees that there is a breach, an appropriate remedy can be issued.
What if there is an existing domestic law that covers a human right?
Then this method of redress must be used first, before being challenged.
R v A (2001):
Lord Steyn: ‘the interpretative obligation under s3 of 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings.’
Also said it may be necessary under s3 to ‘adopt an interpretation which linguistically may appear strained’ and that a declaration of incompatibility was a ‘measure of last resort’.
Effect of Decisions on States and Claimants:
While decisions of domestic courts are binding upon the parties to a human right’s case, the effect of a decision from the ECtHR, while binding, is difficult to enforce.
Effect of Decisions on States and Claimants: For States
ECtHR may decide the state is in breach and award compensation to a claimant. However it cannot make the state change its laws, but relies upon the state voluntarily amending its domestic laws.
Effect of Decisions on States and Claimants: For Claimants
If successful, the most appropriate decision would be to award them compensation, but this is not guaranteed. As with decisions against the state, the ECtHR has no means of enforcing that the state makes the compensation payment.
