Topic 4 - Regional Mechanisms of Human Rights Protection Flashcards
Council of Europe
- Intergovernmental organisation – consists of states
- Aims to achieve a greater unity between members for purpose of safeguarding and realising human rights
- Developed ECHR and over 200 other treaties
Committee of Ministers
- Consists of state representatives
- Guardian of Council of Europe principles
- Ensures states parties to ECHR comply with ECtHR judgments
- Can suspend or terminate any state that fails to comply
o March 2022 – Committee of Ministers suspended then expelled Russia from Council of Europe
European Court of Human Rights
- Created by European Convention on Human Rights
- Article 33 ECHR – Gives ECtHR ability to hear inter-state complaints
o Ireland v UK – interrogation techniques used in 1970s in relation to political unrest in Ireland
o Cyprus v Turkey – violations committed by Turkey in Cyprus
o Ukraine and Georgia v Russia – Russian invasion of Ukraine - Article 34 ECHR – Any person, non-governmental organisation or group of individuals can bring claim directly to the Court (European Commission abolished)
- Article 35(1) ECHR – Requires any state/individual bringing a complaint to have exhausted domestic remedies first
o Helps manage amount of complaints court deals with – do not have resources to deal with all complaints
o ECtHR not an appellate court so cannot decide if domestic court decision was right/wrong, ECtHR is subsidiary to domestic court - Protocol 16 – domestic courts can ask ECtHR for an advisory opinion on whether an issue/decision complies with ECHR
Role of ECtHR in interpretation of ECHR
o Vienna Convention on Law of Treaties Article 31 - ECHR must be interpreted in good faith in accordance with the ordinary meaning in their context in light of its object and purpose
o ECHR object and purpose – human rights protection and maintenance of ideals of a democratic society
o Tyrer v UK – ECHR a living instrument that must be interpreted in accordance with present day conditions
o Golder v UK – right to fair trial would be meaningless if it did not also include right of individuals to access court – it is necessary to seek the interpretation that is most appropriate to achieve the aims and objective of the treaty. Decision opposed by Judge Fitzmaurice as state sovereignty mist not be circumvented
o Judicial interpretation vs judicial legislation – need to balance ECHR human rights as a living instrument to maximise human rights protection with need to respect state sovereignty
o Airey v Ireland – ECtHR guarantees practical and effective protection of Convention rights
ECtHR - Principle of proportionality
o Balancing community’s general interests and individual’s rights
o Articles 8-11 ECHR can be restricted
o Restriction must be proportionate to the legitimate aim pursued – have to ensure means used are most effective to achieve legitimate aim
o Rights restricted during Covid-19 pandemic
o Von Hannover v Germany (No 2) – interference must be necessary and proportionate
ECtHR - margin of appreciation
o States are better placed to determine actions needed to protect public interest and measures needed to comply with human rights obligations
o Handyside v UK – States enjoy discretion and flexibility for determining necessity of measures for restricting rights in protection of life or public morals
o Court will rely on margin of appreciation to determine whether interferences are justified and proportionate to legitimate aim pursued
o Way to balance state sovereignty with human rights protection
ECtHR - principle of subsidiarity
o Primary responsibility for implementing and enforcing rights and freedoms is laid on national authorities
o Machinery of complaint to European Court is subsidiary to national systems safeguarding human rights
o Way to balance state sovereignty with human rights protection
o Way to limit amount of cases that ECtHR hear
o Preamble to the ECHR – states have primary responsibility to secure rights and freedoms in the convention and in doing so states enjoy a margin of appreciation, subject to the supervisory jurisdiction of ECtHR
o ECtHR dependent on state consent so needs to be careful not to overstep its powers and interfere with state sovereignty
o ECtHR not an appellate court so cannot reverse decisions of domestic court
o National courts better placed to examine facts but have a duty to give full effect to ECHR standards
o Garcia Ruiz v Spain – function of ECtHR is not to deal with errors of fact or law committed by national court unless they may have infringed rights and freedoms protected by Convention
ECtHR - Negative and Positive obligations
o Article 1 – obligation to secure rights within territory/jurisdiction
o Negative obligations – state must not interfere with rights
o Positive obligation – obligation to secure rights
o X and Y v Netherlands
Where a state was held liable because its criminal law did not provide a means by which a sexual assault upon a mentally handicapped young woman could be the subject of a criminal prosecution.
In the words of the Court, the Article 8 obligation to respect an individual’s privacy imposed positive obligations that ‘may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves’.
o Costello-Roberts v UK
A case concerning corporal punishment in a private school, the Court noted that the case fell within the ambit of a right—the right to education—that was protected by the First Protocol to the Convention.
It stated that ‘the state cannot absolve itself from responsibility’ to secure a Convention right ‘by delegating its obligations to private bodies or individuals’.
Accordingly, the Court held that, although the act of a private person, the treatment complained of could engage the responsibility of the respondent state under Article 3.
ECtHR - derogations
o Article 15 – in time of war or public emergency threatening life or nation, states may derogate from obligations under ECHR
o Only qualified rights can be derogated from
ECtHR - individual complants procedure
o Protocol 11 – individual petitions compulsory
o Individuals can bring claim directly before ECtHR
Schlette and Rowe – Protocol 11 transformed the Convention into a wholly judicial system by giving individuals the right to bring cases before the Court. The Simpler, swifter process is a considerable improvement to human rights protection
o Admissibility
Protocol 14 - Only individuals who have suffered a significant disadvantage can bring a claim (how do you measure this?)
Court restricts circumstances under which can bring a claim – protect sovereignty of states, margin of appreciation and need to manage volume of complaints
ECtHR victim of own success – now overwhelmed with claims
Article 35(1) - Must have exhausted domestic remedies
Must be sufficient link between individual and violation
Bring claim against state party to ECHR
Article 13 – individuals have right to an effective remedy
Court can issue pilot judgments – court issues one judgment which applies to human rights violations of the same kind and can then dismiss subsequent cases. Way to manage number of applications
ECtHR - jurisdiction
Spatial jurisdiction – court can hear claims where state has exercised effective control over territory
Personal jurisdiction – court can hear claims where state has exercised effective control over individuals
Functional jurisdiction – hear claims where state has responsibility over their conduct
Before Bankovic, if individual affected by actions of state party, irrespective of where violation occurred, the state party was responsible
Bankovic – journalists killed in bombing of Yugoslavia. Bombing came from territory of states party to ECHR. No troops in Yugoslavia. Court held could not comment on whether these states violated the right to life as none of the states exercised effective control over Yugoslavia’s territories. Court took restrictive approach to jurisdiction
- Contrast to approach of Inter-American Commission on Human Rights – Alejandro v Cuba shooting down of Syrian aircraft was violation and within jurisdiction
- Contrast to approach of Human Rights Committee – AS and others v Italy migrants at sea HR violations were within jurisdiction
After Bankovic, ECtHR takes restricted view to jurisdiction – wanted to respect state sovereignty with their jurisdiction
Al-Skeini v UK – Court took different approach. UK troops killed 6 Iraq individuals. Court decided UK’s human rights obligations extended outside territory of UK. Iraqis killed when in detention by British troops. ECtHR accepted they have jurisdiction when states have effective control over a territory and there is effective control over a person (EXTRATERRITORIAL APPLICATION)
* Judge Bonello – states cannot be gentlemen at home and hoodlums elsewhere
* Met with a lot of criticism
Careful not to go too far – extra-territorial jurisdiction can be applied on a case-by-case basis
* Ben El Mahi v Denmark – complaint by Moroccan nationals against Denmark concerning caricatures of prophet Mohammed. ECtHR dismissed case as lacked jurisdiction. Court trying to expand jurisdiction territorially but still cautious not to extend jurisdiction too far
Examples where court continued to expand jurisdiction
* Jaloud v Netherlands – individual died after being shot at military checkpoint in Iraq. Dutch forces not occupying power in Iraq so could not apply same jurisdiction reasonings as Al-Skeini. Court deciding by passing through checkpoint, Dutch forces exercised a sphere of influence over the precise area and so Court had jurisdiction to comment on Dutch actions
* Guzelyurtlu v Cyprus and Turkey – Cyprus and Turkey violated article 2 in failing to conduct effective investigations into their relatives’ killings. Judges found a jurisdictional link initiated between victims and Turkey and Cyprus from the instigation of the criminal investigation or the ‘special features’ since suspects had fled to Turkish Republic of Northern Cyprus, preventing Cyprus from conducting its own investigation
