Principles of interpretation+subsidiarity

Question 1

What article concerns inter - state cases?

Answer 1

Art. 33 –> between member states of the CoE

Question 2

What article concerns individual complaints?

Answer 2

Art. 34 –> individuals, groups, NGO’s

Question 3

What does the requirement of “victim status” entail?

Answer 3

The one complaining to the ECtHR of a breach of the ECHR must be the victim of the violation
Except in Art. 2 cases - the family of the one subject to the violation can bring the complaint

Question 4

What is the criteria of admissibility?

Answer 4

Art. 35
- Exhaustion of domestic remedies (OBS: Art. 13)
6 month time limit from the final domestic decision (appeal) to complaint is brought
- Complaints cannot be: anonymous or the same as a previous case

Question 5

What makes a complaint inadmissible?

Answer 5

Art. 35

• incompatible with the Convention, manifestly ill f-founded or abuse of power
• applicant has not suffered a “significant” disadvantage , i.e., a minimum level of severity

Question 6

What are the exceptions to inadmissibility requirements?

Answer 6

If respect for human rights requires an examination of the topic anyways OR the case has not been duly considered by the domestic tribunal

Question 7

What is a derogation?

Answer 7

A suspension of the Convention rights in times of emergency

Question 8

When can a State derogate?

Answer 8

Art. 15 (1)

During war or other public emergencies threatening the life of the nation, e.g. terror threats

Question 9

What rights cannot be derogated from?

Answer 9

Art. 2
Art. 3
Art. 4 (1)
Art. 7

Question 10

What are the requirements for derogations?

Answer 10

Formal announcement from State to Secretary General of the CoE at:

• beginning of suspension
• end of suspension

Question 11

What article prohibits abuse of Convention rights?

Answer 11

Art. 17
Prevents ECHR protection of actions that aim to undermine the rights and freedoms set forth in the Convention, i.e., it goes against the purpose of the ECHR
Ex., if the purpose of an activity is to overthrow a democratic form of government or to incite hatred or violence against someone else

Question 12

What are the values protected by the ECHR?

Answer 12

Freedom rights
Democracy
Pluralism
Personal dignity

Question 13

When does Art. 17 apply?

Answer 13

Only in extreme cases (typically in Art. 10 - cases=
Generally actions that are harmful to the values protected by the ECHR, e.g.,
- revisionist speech
- racial defamation

Question 14

Case where Art. 17 was used?

Answer 14

Gaurady v France
(Art. 10 - case)
Author had written book denying that the Holocaust had taken place. The Court found that the denial of well established historical facts regarding crimes against humanity amounted to serious racial defamation of the Jews. The denial of the Holocaust undermines the very values on which the fight against racism and anti -semitism are based on and constitutes a threat to public order. Such acts are incompatible with democracy and human rights and are prohibited by Art. 17

Question 15

Can the State impose a restriction on a Convention right for another purpose than the one given?

Answer 15

No - prohibited by Art. 18
The state must not impose restrictions on Convention rights for any other purpose than the one stated, i.e., the real aim of the restriction must be revealed!

Question 16

How should the Convention be interpreted?

Answer 16

Art. 31, 32 and 33 of the Vienna Convention on the Law of Treaties should be used as guidance in interpreting the ECHR - the articles are generally regarded as being declaratory principles of customary international law

Question 17

In what case did the Court state that the VCLT should be used as guidelines for interpretation

Answer 17

Golder v UK

Landmark case on interpretation of the ECHR

Question 18

What does Art. 31 of the VCLT state?

Answer 18

The general rule of interpretation:
A treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose

Question 19

What does Art. 32 of the VCLT state?

Answer 19

Supplementary means of interpretation:
Recourse may be had to preparatory work of the treaty in order to confirm the meaning resulting from the application of Art. 31 or to determine the meaning when the interpretation according to Art. 31
- leaves the meaning unclear or obscure, or
- leads to a result that is manifestly absurd or unreasonable

Question 20

What does Art. 33 of the VCLT state?

Answer 20

To be used when the treaty has been authenticated in at least two languages
States that the treaty is equally authoritative in each language, unless the treaty providers have agreed that one text should prevail, in case of a divergence

Question 21

What languages has the ECHR been authenticated in?

Answer 21

English and French
The ECHR is equally authoritative in both languages
If the texts differ on crucial points: the meaning which best reconciles the texts having regard to the object and purpose of the treaty, must be used

Question 22

What are the general principles of interpretation of the ECHR?

Answer 22

Textualism
Intentionalism
“Object and purpose” approach - living instrument doctrine

Question 23

What is “textualism”?

Answer 23

The “ordinary meaning” of the text is used
- what is the common understanding of the term?
E.g., the dictionary’s definition of a term or the natural understanding of the term

Question 24

What can be problematic about textualism?

Answer 24

Terms don’t always have the same meaning across national legal systems
If there is a common European approach to the word - this meaning will apply
Lack of common European approach to the word -greater flexibility of standards

Question 25

Examples of textualism in Court’s case law?

Answer 25

Petty v UK

The Court stated that the right to life in Art. 2 cannot be read as also including a right to die

Question 26

What does autonomous interpretation mean?

Answer 26

The ECHR is interpreted independently of the interpretation of the terms in domestic legal systems.
Means that the respondents States definition of a term does not have decisive impact on the Court’s definition

Question 27

Example of the Court giving a term an autonomous meaning?

Answer 27

“Criminal charge” has it’s own meaning under the Convention
Purpose - avoiding that States circumvent rights in Art. 6 (criminal limb) by not classifying something as “criminal” under domestic law

Question 28

What is “intentionalism”?

Answer 28

The text is read as a whole with it’s preamble and in accordance with how it was made to be understood at the time of the drafting
Allows assistance to be derived from the underlying objectives frequently set out in the Preambles

Question 29

Example of “intentionalism” in case law?

Answer 29

Witold Litwa v Poland (Art. 5 case)
The Court noted that in common usage the word “alcoholic” means a person who is addicted to alcohol, but within the meaning of Art. 5 §1 (e) the term is in a context where it refers to people who due to intoxication pose a danger to others or themselves, i.e., this could also be person who is just drunk at a party or club.
Court therefore interpreted the term in a contextual meaning (intentionalism) and not it’s ordinary meaning (textualism)

Question 30

What is the living instrument doctrine?

Answer 30

Dynamic interpretation
The Court is influenced by developments in Member States and is seen as
a living instrument, that must evolve alongside the European societies,
in order to secure an effective protection of human rights and can lead to the Court overturning its previous decisions

Question 31

What is European Consensus?

Answer 31

A rebuttable presumption in favor of the solution adopted by the majority of the Contracting Parties

Evolving convergence in CoE member states on a given topic
+ consensus = same opinion on subject in States
- consensus = differing opinions on subject in States

Question 32

What does European Consensus mean in relation to the Principle of Effectiveness?

Answer 32

European Consensus = activist Court
- Court is likely to adopt an evolutionist approach to the ECHR, i.e., widening the scope of a right based on evolving trends in States

Lack of European Consensus = passivist Court
- Court is less likely to adopt an evolutionist approach, i.e., refusing to recognize a right in the absence of firmly established commonly shared values

Question 33

Examples of living instrument doctrine in case law?

Answer 33

Best examples of dynamic interpretation concern transexuals rights to recognition of gender identity under Art. 8

Question 34

Name a case?

Answer 34

Christine Goodwin v UK
The case overturned Reese v UK.
Court noted that while it is not bound to follow its previous decisions, it is in the interest of legal foreseeability and equality before the law, to keep in live with previous cases. Nevertheless, in order to provide effective protection of human rights, it must have regard to changing conditions within the contracting states as to not render ECHR rights illusionary, but ensure that they are practical and effective.
A failure on the Courts behalf to apply a dynamic interpretation would potentially cause the protection provided by the Convention to be ineffective

Question 35

Living instrument - recognizing rights that drafters could not have known of

Answer 35

Court has previously stated that “the mere fact that a body was not envisaged by the drafters of the Convention, cannot prevent that body from falling within the scope of the Convention”

Question 36

Living instrument - recognizing rights intentionally rejected by drafters

Answer 36

Young, James & Webster (Art. 11 case)
The Court stated that even tough a rule was “deliberately omitted from and so cannot be regarded as itself enshrined in the Convention, it does not follow that the negative aspect of a persons right to freedom of association falls completely outside the scope of Art. 11”

Question 37

What is the Principle of Subsidiarity?

Answer 37

Art. 1 states that the primary responsibility for securing Convention rights lies upon the Member States.

The Court should therefore only be necessary when States are incapable of securing the Convention rights

Question 38

Is it expressed anywhere in the Convention?

Answer 38

Yes, in Art. 13 (right to an effective remedy)
and Art. 35 (exhaustion of domestic remedies)

OBS: the two provisions are dependent on each other, as Art. 35 presupposes that the applicant has had access to an effective domestic remedy

Question 39

What does the Principle of Subsidiarity do?

Answer 39

Ensures that national systems are primary safekeepers of human rights and gives States a chance to amend a possible violation within their jurisdiction before the case is brought before the Court

Question 40

Are there different kinds of subsidiarity?

Answer 40

Yes

• Substantive, and
• Procedural

Question 41

What is procedural subsidiarity?

Answer 41

Requirement of

• Exhaustion of domestic remedies (Art. 35)
• Right to an effective remedy (Art. 13)
• Pilot judgements (technique of identifying structural problems within States underlying repetitive case and impose an obligation on the States to address those problems. The Court does not only find a violation in the specific case, but identifies general, structural issues and ask the Governments to fix it)

Question 42

What is substantive subsidiarity?

Answer 42

Margin of appreciation
Recognizing facts established by domestic courts
Recognizing interpretation of domestic law made by domestic courts
Restriction on States arguments not raised before national courts
Respecting balancing exercises made by national courts, IF they are conducted in light of ECtHR’s jurisprudence

Question 43

Limits to subsidiarity?

Answer 43

Facts have not been properly established by domestic court - Court can initiate a fact finding procedure under Art. 38

State does not conduct judgement with proper regard to ECtHR jurisprudence
E.g., French case regarding legislation that did not allow for “illegitimate” children to inherent property. The Court has previously ruled against the concept of “illegitimate children” and the domestic courts should have respected this and could not use Principle of Subsidiarity as an excuse to not conduct cases with proper regard to ECtHR case law

Question 44

What is the Doctrine of Margin of Appreciation?

Answer 44

A “leeway” or “an operating space” left to the States in their application of ECHR rights

Question 45

Reasons for Margin of Appreciation?

Answer 45

A consequence of the Principle of subsidiarity

View that domestic authorities are better suited to ascertain local social needs

Respecting cultural diversity across Europe

Respecting democratic legitimacy

Question 46

Example?

Answer 46

Handyside v UK. Case (Art. 10 case)
Concerned the publication of “The Little Red Schoolbook” that got banned in the UK. Court stated that it is not possible to find a uniform conception of morals across member states - morals also vary across time (not a static concept). The Court found that as a result of the domestic authorities close contact with the movement in their own country, they would be better suited t than an international judge to give an opinion of the necessity of the restriction. Wide margin of appreciation.

Question 47

Application of Margin of Appreciation on the process of fact finding?

Answer 47

Court will only take on fact finding if its unavoidable.
It is not the Courts task to substitute it’s own assessment of the facts for that of the domestic courts as the latter can establish facts on the basis of evidence before them

Question 48

Application of Margin of Appreciation on interpretation and application of domestic law?

Answer 48

Not the Courts place, it relies on the domestic courts interpretation

Question 49

Problems with Margin of Appreciation?

Answer 49

No express basis in ECHR
(consequence of Principle of Subsidiarity stated in Art. 1, 13 and 35)

Geographical inconsistency in human rights standards

Abdication of responsibility on part of the ECtHR

Inconsistency in case law

Question 50

Areas of wide Margin of Appreciation?

Answer 50

National Culture (Lautsi v Italy)

Morality (Handyside v UK)

Environmental issues

Socio - economic rights

National security

Areas that lack European Consensus

Question 51

Areas of narrow Margin of Appreciation?

Answer 51

Political rights

Gender and sexual orientation

Blanket bans

Issues with a strong European Consensus

Question 52

Wide or narrow Margin of Appreciation?

Answer 52

Depends on the existence of European Consensus on the topic - the consensus regulates the width of the margin of appreciation

However, case law does not always follow this!

• Goodwin v UK. Court found a violation of Art. 8 even though there was weak evidence of European Consensus on recognizing transexuals gender identity and there had not really been any major changes on the issue in Member States since Rees v UK was adjudicated
• S.A.S v France. Court found no violation of Art. 9 on blanket bans of full - face covering in public, even though there was a strong European Consensus against blanket bans on face coverings and France was one of only two states opting for such measures at the time
• A, B & C v Ireland. The Court disregarded the European Consensus on allowing abortions and held that this could not narrow the respondents states broad margin of appreciation and could not be decisive factor in the Courts decision