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I. Council of Europe and ECHR

I. Council of Europe and ECHR. Context of creation of the COE Speech of Winston Churchill at the University of Zurich University The Hague Congres 1948 The London Treaty on May1949 establishing COE. Aims of the Council of Europe. II. Aims of the COE

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I. Council of Europe and ECHR

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  1. I. Council of Europe and ECHR • Context of creation of the COE Speech of Winston Churchill at the University of Zurich University • The Hague Congres 1948 • The London Treaty on May1949 establishing COE

  2. Aims of the Council of Europe II. Aims of the COE The raisons d’être are set out in the first article of the London Statute : “The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress ».

  3. II. Aims of the COE • Article 3 Treaty of London • To defend and promote rule of law, respect for human rights and principles of pluralism democracy Two objectives: First to unite states for the purpose of safeguarding democratic principles ; secondly to promote the economic and social development. For the authors of the Treaty of London, political and social democracy are inseparable. No peace without social progress. • But creation of the EOCD and CEE

  4. III Member states • Accession: to be part of Europe and to accept democratic values. Décision of the Committee of Ministers after consulting Parliamentary Assembly • 47 States -10 founding states 1949 -Spain and Portugal 1976, 1977 -Central and eastern Europe new democracies 1990 -Russia 1996…

  5. IV. Structure of the COE Parliamentary Assembly: • The Parliamentary Assemblyconsists of representatives of each Member State elected by its parliament from among its members or appointed among the members of that parliament. • The Assembly consists of independant parliamentarians. It only has consultative powers. It’s the reason why it was originaly called the Consultative Assembly. In 74, it dropped the label consultative to call iself the Parliamentarian Assemly but the new title did no affect the Assembly’s powers.

  6. Structure COE Committee of Ministers • The most important organ of the Council of Europe. It is the supreme intergovernmental body which has the power to act and to decide for the COE. • The Secretary General: the challenge of the COE J. Jagland

  7. V. Realisations of COE • One of the most significant role of the COE is its standard setting’s activity. More than 200 conventions have been drafted under the auspices of the COE. • Treaty making power is important because it forges closer ties between member States by encouraging them to harmonise their laws and legal systems. Il contributes to the unification of law at European level and the framing of minimum standards. European“ jus communis » .

  8. Realisations COE 1.In the field of protection , promotion and prevention in HR • ECHR and other conventions. Monitoring system of each convention • The European Commission against racism and intolerance • The Commissioner for HR whose post was created in 1999. He plays essentially a preventive role. 2.Media and democracy 3.Legal cooperation 4. Social cohesion etc…

  9. VI. Credibility of the COE -Problems with Russia: violation of HR and protocol 14; Russia and Georgia, Azerbaïdjan and Armenia -The EU: shows signs of moving into areas already covered by the COE. Example action against the racism and xenophobia taken up by the EU -Overlaping with the UE: Charter of fundamental rights 2000, Fundamental Rights Agency -

  10. Credibility EU and COE cooperation • The link between the charter and the ECHR: EU accession to the ECHR. Protocol 14 and article 6 of the Lisbon Treaty. • Institutional participation by the Union in the work of the COE: permanent invitation for the EU Commission to attend all meetings of committees established by the Committee of Ministers and to all the meetings of the Committee of Ministers. Today, the EU Commission participates in various activities of the COE and forums. • EU finances most of the activities of the COE • Memorandum of understanding between the COE and the EU of 10 and 11 May 2009 (document CM (2007)74

  11. VII: ECHR VII: The ECHR • International treaty • Not subject to the condition of reciprocity 1. Historical background • Direct response to World War 2 and its horrors like camps of concentration, genocide and constant violation of HR • To protect European states from communism 2. Philosophical background • Link with the French Declaration of the Rights of Man and the US Declaration of Independance • Based on the principle that all human beings are equal in dignity

  12. ECHR 3. A regional system of protection of HR Based on the UDHR, the ECHR is aimed at implementing the Declaration on the European level 4.Civil and political rights only 5. Enforcement of the ECHR The originality of the ECHR is to have set up an international Court, the European Court of Human Rights to examine alleged violations of the Convention by member States.

  13. VIII: Rights ECHR VIII. The Rights included in the ECHR • Long list and large scope of the rights guaranteed For some of them, states can interfere with them in order to secure some interests. For four rights, States are permitted to limit them, but under such conditions prescribed by the Convention itself. The limitations must be prescribed by the law, necessary in a democratic society in pursuit of one of the specified aims foreseen by la Convention. Cf articles 8, 9, 10 et 11. Some of them are considered as absolute rights: in the sense that no derogation can be permitted even in time of war or other public emergency threatening the life of the nation. articles 2, 3, 4 paragraph 1,7; protocol 13.

  14. ECHR 1.Right to life • Ex: Shooting by military police of two Roma conscripts and lack of an effective :Nachova and others v. Bulgaria, 6 July 2005. The applicants alleged that two of their respective close relatives, had been shot and killed by military police in violation of Article 2 of the Convention. They also complain that the investigation into the events had been ineffective, in breach of both Articles 2 and 13 of the Convention. It was also alleged that Bulgaria had failed in its obligation to protect life by law, contrary to Article 2, and that the impugned events were the result of discriminatory attitudes towards persons of Roma origin, in breach of Article 14 of the Convention taken in conjunction with Article 2 • « Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe ».The Court must subject allegations of a breach of this provision to the most careful scrutiny ».

  15. ECHR • The question of death penalty The protocol 13 abolishes the death penalty in all circumstances :` Article 1 – Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Article 2 – Prohibition of derogations No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

  16. ECHR 2.Prohibition of torture and inhuman and degrading treatment « As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention , Article 3 makes no provision for exceptions and no derogation (see e.g. Selmouni v.  France [GC], no. 25803/94, ｧ 95) ».

  17. ECHR 3.The right to a fair hearing in civil and criminal cases article 6 : concerns a fair administration of justice. Article 6 occupies a central place in the Convention and is the provision of the Convention the most frequently invoked by applicants in Strasbourg. • It implies the right to access to a court, the right to effectiveness of court’s proceeding, equality of arms; adversarial process; independant and impartial tribunals; presomption of innocence; public hearings and justice in a reasonable delay.

  18. ECHR 4. the right to respect for private and family life 5.freedom of expression • In the leading case Handyside v. UK, the Ruropean Court emphasizes the importance of the right protected by article 10 which, it said , “constitutes one of the essential foundations of a democratic society, one of the basic condition for its progress and for the developement of every man ｻ. Freedom of expression has a very broad scope. The Court considers it’s vital to protect the right to free speech because of its power to promote democracy, to uncover abuses and advance political, artistics, scientific and commercial development ». It prohibits censorship from the State • But that right can be restricted by the state. Article 10 includes a paragraph which permits the state to limig the right provided that such limitations are prescribed by the law, and necessary in a democratic society in pursuit of one of the specified aims.

  19. ECHR • Freedom of association including the right to strike • Freedom of thought, conscience and religion; • Right to an effective remedy • Right to peaceful enjoyment of one’s possessions; • Right to vote and to stand for election. Article 3 of the first protocol presupposes the existence of a representative legislature, elected by people at reasonable intervals, as the basis of a democratic society ; implies that law should be made by a legislator responsible to the people 

  20. IX. individual applications IX The individual complaint -Interstate and individual complaints -Article 33 ECHR provides that “Any High Contracting Party may refer to the Court any alleged breach of the provisions of the convention and the protocols thereto by another High Contracting Party » -Article 34 ECHR – Individual applications: The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

  21. Individual applications The Court is the only international Court to which an individual, non governmental organisations or group of individuals have access for the purpose of enforcing their rights under the Convention .

  22. ECHR Individual applications X. Processing of applications • The Court rules on the admissibility and, where appropriate, the merits of the cases submitted to it. Its jurisdiction is binding on all the Contracting States. • I n order for an application to be admissible, the applicant must have exhausted the effective remedies available in the country in which the alleged violation was committed. He or she must also lodge the application within six months of the date on which the courts or authorities of that State issued their final decision. Cases which are manifestly ill-founded are declared inadmissible. • -The applicant must have suffered personally from the alledged violation. Usually, the applicant personnaly suffered treatment amounting to torture or an interference with his or her rights to a fair trial, for example.

  23. ECHR individual application • The nationality of the applicant is not important, an stateless person. The only condition is that the applicant must be under the jurisdiction of the Court. For example, a stateless person or a refugee or a foreigner can apply to the European court. The ECHR protects every one within the jurisdiction of the contracting states.

  24. X. ECHR compensation of the victim X. Compensation of the victim If the Court finds there has been a violation of the Convention, the Court shall afford’ »just satisfaction» to the injured party. The compensation covers the material and the moral damage. Article 41 XI. Execution of judgments • Role of the Committee of Ministers of the COE

  25. XII. ECHR Future XII. Mounting pressure on the Convention system • The Court is today overloaded. the Court delivered its 10 000 th judgement in December 2008. The overload of the Court starts in the 80 but this trends is really clear since the entry into force of the protocol 11 (1998) and the abolition of the European Commission and the enlargment of the Coucil of Europe. By the end of 2010, almost 120 000 allocated applications were pending before the Court. 40 000 applications are brought before the Court each year. • The Court is delivering approximatively 1500 judgement per year. Four states account for over half of its workload 

  26. ECHR Future • The backlog is very important and the situation is going worse and worse. If nothing is done to resolve the problem, the system will collapse. • Because of the rapid increase of the number of contracting States, rising from 22 in the 90’s to the current total of 47. This was not taking into account in the frames of the protocol 11 • Because of a better knowledge of the Convention and of the possibilities to lodge a complaint with the european Court of Human Rights . • One more precision : 90% of cases brought before the Court are declared inadmissible

  27. XIII. ECHR Reform • Protocol 14 has been drafted in 2004 to reform the Court. It aims at giving the Court the necessary means and flexibility to process all applications within a reasonable time. It enables the Court to concentrate on the most important cases. It seeks in particular to reduce the time spent by the Court on manifestly inadmissible and repetitive cases.  • It entered into force the 1st June 2010. Russia obstructed the reform of the Court during a long period but has just decided to ratify it.

  28. PROTOCOL 14 • The judicial formations have been modified. one single judge will dispose of applications that are clearly inadmissible . A three judge Committee may declare applications admissible and decide on their merits in clearly well-founded cases and those in which there is a well-established case law, which are called repetitive cases. • A new condition of admissibility

  29. New condition of admissibility

  30. Second part: EU and HR • No mention of human rights in the first version of the Treaty of Rome (1957) except for two exceptions ; the freedom of movement for workers and self employed persons which is mentioned by articles 48 to 58 of the treaty and the prohibition of any discrimination on ground of nationality and sex. I. The Case law of ECJ The ECJ decides to give to fundamental rights the status of general principles of law • It found its inspiration in the constitutional traditions common to the member states which constitues their common patrimony and in the ECHR. Today ECHR is the principal source of inspiration for the ECJ.

  31. Treaties and values II. Insertion of the case law of ECJ in the Treaties 1.With the Treaty of Maastricht article 6§2 is included in the EU treaty: • « 2. The Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
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  32. Treaties and values 2. The Treaty of Amsterdam established, as a general principle, that the European Union should respect human rights and fundamental freedoms, upon which the Union is founded: Article 6§1 of the Treaty on European Union « 1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles that are common to the Member States. » • In the same time, the Amsterdam Treaty enriched the list of rights guaranted by the treaty

  33. The Lisbon Treaty 3. The Lisbon Treaty insists on the values shared by the Member States. In that purpose article 2 of the Lisbon Treaty details and precises those values. Article 2 « The treaty is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights to persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

  34. Lisbon Treaty:Article 6 TEU • Article 6 : 1. « The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties » • 2.The Union shall accede to the European Convention on Human Rights. …. • 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the constitutional traditions common to the Member States shall constitute general priciples of the Union’s law ».

  35. The Lisbon Treaty: politicial sanctions • The treaty allows the Union to suspend certain rights of a Member State deriving from the application of the Treaty, if it has determined the existence of a serious and persistent breach of these values by that Member State.(Art 7 TEU) • Candidate countries will have to respect these principles to join the Union (Art 49 TEU).

  36. Charter of Fundamental Rigts III. The EU Charter • It doesn’t create new rights, it enshrines in a single text the fundamental rights which were laid down before in a variety of international, European and national legal sources suchs as the international conventions ratified by all Member,the ECJ case law , the European Social Charter or the ECHR or the Eu treaties. 1. Historical background The Court of Justice's Opinion 2/94 of 28 March 1996 concerning the accession of the EC to the ECHR has been clear that the EC cannot accede to the ECHR until certain necessary changes have been made to the EC Treaty itself. At that time, it seemed that the changes that would be required did not command enough political support. The only way: the Charter

  37. Charter of fundamental Rights 2. Raison d’être: to enhance the legitimacy of the EU 3. The content: Three categories of rights, civil and procedural rights as enshrined in the ECHR, rights which belongs to the European citizens and some economic and social rights as guaranteed in the European Social Charter and in an other document called the Charter of Social Fundamental Rights of the Workers

  38. Charter of fundamental Rights 4. Originality of the Charter - Implementation of the principle of indivisibility of rights • The insertion of social rights, the distinction between principles and rights • Rights are directly reviewable or judicially recognisable. Principles are indirectly judicially recognisable. They may be implemented by executive ou legislative acts taken by institutions, bodies, etc… and by acts of Member States when they are implementing EU law. The legality of those acts may be contested before the courts only if they contradict a principle

  39. Charter of Fundamental Rights 5. Rights • The Charter contains all the rights guaranted by the ECHR. But the scope of the protection provided by these two texts is different. The ECHR relates solely to civil and political rights, whilst the Charter of the European Union covers additional aspects, such as the right to good administration, workers' social rights, and bioethics. In addition, the Charter covers those political rights of Union citizens that, by definition, cannot be included in the Convention of the Council of Europe. • -the wording of some rights which correspond to the rights included in the ECHR has been modernised. • -social rights and political rights are mixed in all the chapters 

  40. Charter of Fundamental Rights 6. transversal provisions In drawing up the EU Charter, it was important to ensure that no discrepancies emerged with the existing provision of the European Human Rights Convention. The drafting Convention agreed on safeguards, which were also approved by the Council of Europe observers who attended the discussions.

  41. Charter of Fundamental Rights -The interpretation of rights which correspond to rights guaranted by the ECHR • The question of whether limitations should be enumerated right-by-right in the Charter (as in the Human Rights Convention) or confined to a general provision, caused lengthy debate during the drafting process. The majority view was opposed to making the text of the Charter more cumbersome and difficult to read by including a long list of the reasons why some rights are limited in a democratic society. The Convention adopted the second approach, embodied in Article 52. • Article 52(3) of the Charter specifies that any rights that ‘correspond’ to those already articulated by the Human Rights Convention shall have the same meaning and scope. The precise meaning of the word “correspond » may be open to interpretation, but the drafting Convention set out its own detailed understanding in its explanatory document.

  42. Charter of fundamental Rights • The stand still clause The Charter includes a ‘standstill clause’: Cf. Article 53. This sets out to preserve the level of protection already afforded by Union, national and international law in their respective spheres of application, as well as Member States constitutions and international agreements. This clause makes specific reference to the ECHR, and stresses that the Charter cannot undermine rights already guaranteed by that Convention.

  43. Legal value of the Charter At the begining,simple interinstitutional declaration which is not legaly binding -Lisbon Treaty article 6:Article 6 §1. « The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties »

  44. EU Accession to the ECHR • Article 6.2TUE: The Union shall accede to the European Convention on Human Rights. …. However, the Union itself is unable to be part to the Convention because it is not a sovereign state. To enable it to do so, the Convention itsef has been amended by protocol 14. • All European Union Member States are already signatories to the European Convention for the Protection of Human Rights and Fundamental Liberties – agreed by the Council of Europe in 1950.

  45. Accession Objectives of the accession (see doc p.33) • To have one minimal standard of HR protection for the whole European continent (for the 47 members of the COE • To avoid discrepancy of jurisprudence between the European Court of HR and the European Court of Justice

  46. Accession EU law and European Court of HR State of the arts • EU Primary law can be challenged before the ECourtHR: CEDHMatthews v the United Kingdom 1999 Violation by the UK of the right to vote provided by Article 3 of the first protocol of the ECHR. The Court considers that the transfer of competences to the EU provides that the Convention rights continue to be secured. Member states responsibility continues even after such a transfer. • The UK could refused to enter into • Primary law cannot be challenged before the ECJ for the reason it’s not “normal” acts of the community.

  47. ACCESSION • Secondary law (regulations, directives etc..) Bosphorus airlines v. Ireland 2005 • State action taken in compliance with EU law is justified as long as the EU is considered to protect fundamental rights in a manner which can be considered as least as equivalent to that for which the Convention provides

  48. III. EU external relations and HR • The European Union has made HR and democracy a central aspect of its external relations : • In the political dialogue it holds with third country • Through its development cooperation and assistance • Through its action in multilateral fora as the UN.

  49. External relations • Article 21 of the Lisbon Treaty: The Union action on the international scene shqll be guided by the principles which have been guided its own creation development and enlargment: democracy and the rule of law, the universqlity and the indivisibility of HR, respect for human dignity, the principle of equality and solidarity, and respect for the principles of the UN Charter and international law.

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