1 / 18

EU legislation & European Convention on Human Rights Boštjan Vernik Šetinc,

EU legislation & European Convention on Human Rights Boštjan Vernik Šetinc, Advocate of the Principle of Equality (EOO) www.zagovornik.net. The scope of your jurisdiction ?. Does Croatian Ombudsman supervise only special legislation or the system as a whole? Is there a difference when:

drago
Download Presentation

EU legislation & European Convention on Human Rights Boštjan Vernik Šetinc,

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. EU legislation & European Convention on Human Rights Boštjan Vernik Šetinc, Advocate of the Principle of Equality (EOO) www.zagovornik.net

  2. The scope of your jurisdiction? • Does Croatian Ombudsman supervise only special legislation or the system as a whole? • Is there a difference when: • Hearing cases? • Monitoring? • Workingon general issues (commenting draft legislation…)? • Workingproactively (positive action, influencing policies, raising awareness, promotion, trainings) • negative obligations (ILOvs. EU – women in mining) • positive obligations (the obligation to implement effective policy to achieve equality of opportunities or even some degree of substantial equality:UN, ESC)

  3. Legal protection MREŽENJE POSEBNO POROČILO TRENINGI PROMOCIJA NOVI TWINNING MEDNARODNO SODELOVANJE Your “Case-law“ ECHR ESC ILO CRO OMB ICCPR ICESCR ICERD CRPD CEDAW

  4. The scope of protection – what is at stake? Human rights & liberties Other legal Rights & obligations as set in domestic law and/or when setting them (equality before the law)? Legal interests (quasi-public domain) Who is the alleged offender? Is there any difference in obligations? Public body (equal protection of the law) / private body, natural person

  5. The scope of protection – what is at stake? The Right to Non-discrimination, The Right to Equal Treatment(The Right be Treated Equally) or even The Right to Equality? Slovenian Constitution: ECRI’s comment Drittwirkung– (in)direct legal effect between private subjects inter partes Non-discrimination, equal opportunities, formal/protective/geometric/distributive/commutative equality, equity, positive action, other positive obligations, diversity We can not talk about one (international) legal concept. Not yet.Fast evolution: The effect of this HRis being more and more recognized (legally protected) which gives the illusion the right is substantially expanding.

  6. The scope of protection: areas? Areas of life where one is protected against discrimination: • Fundamental rights & liberties / four freedoms (persons, capital, goods & services + ideas) • Equality before the law: Protocol 12 ECHR - domestic legislation / EU treaty - the acts of the EU Bodies, MS • Equal protection of the law (the public sector) • Employment (not just employment relationship stricto sensu) • Goods and services & housing • Social protection, education • Taxes (exemptions…), customs, social policies (benefits…), employment policy, interventions, acquisition of nationality, private relationship, etc…

  7. The scope of protection: grounds? Groundsfor discrimination “open ground formula” UN system, ECHR The Declaration of Principles of Equality, Art. 5, para. 2: http://www.equalrightstrust.org/ertdocumentbank/Pages%20from%20Declaration%20perfect%20principle.pdf limited (listed) grounds EU directives (vs. the Treaty) – employment (part time/full time, nationality), goods and services (a need to act on community level) Croatian Anti-discrimination Act (but a very wide range)

  8. The scope of protection: scrutiny? • Strict scrutiny test ECHR “suspect” grounds, particularly weighty reasons / EU no-exceptions to direct discrimination • Reasonable proportionality test what is necessary in democratic society? / aims of EU law • Test of Non-arbitrariness The aim is legitimate & the means are reasonable for achieving it

  9. The scope of protection: EU vs. ECHR? EU The Treaty (direct effect), the Charter (HR – as fundamental principles): EU bodies, MS when applying EU legislation The Directives (indirect effect - harmonisation):racial, framework, gender employment & goods and services, third country nationals, a new one? Uniform instrumentary, definitions (d. by association, d. by perception, victimisation, harassment), shared burden of proof, the right to independent assistance before the equality body (race and gender) ECHR (Protocol No.12) Rights under ECHR. All rights as set by (domestic) law, including rights as set by EU law. More flexible aproach.

  10. The scope of protection: EU vs. ECHR? EUECHR Protocol No.12 LEGAL Nature “diffuse”, non-coherent; supranational “coherency”; international Demands also effect inter partesbinds public powers Promotes also policies Systemicremedy: infringementproc.ind. remedybefore ECtHR Areas fundamental rights (4 freedoms) HR, political rights, education Employment statutory rights Goods and services & housing

  11. The scope of protection: EU vs. ECHR? EUECHR Protocol No.12 GROUNDS race & ethnical origin, gendersuspect, “hierarchy” Goods and services & housing, social protectionopen ground “Hierarchy” - other grounds: employment, politicalbelief, property but see also disability (transport), health citizenship (third c. nationalsonlypartly) all subjects SCRUTINY Common uniform standard / harmonisationmargin of appreciation Shared burden of proof Assitance of the specialised body

  12. Benefits to the victim: ECHR? European public order (international minimum) • A remedy before ECtHR - judgment as a remedy, just satisfaction, effective protection may require wider action, other consequences (re-opening?) • Article 13 “a parasitic” provision, but there are many very important decisions: the right to privacy, freedom of speech, religion, assembly, what is property; the most severe violations can amount to torture and degrading treatment, hate crimes, school-segregation, prison conditions… • Protocol 12 (open ground formula, all areas regulated by domestic law, political rights!)

  13. Benefits to the victim: EU? Supranational nature (vs. domestic legislation): • Direct effect: equal pay (gender), 4 freedoms Amsterdam: Directives require harmonisation (minimum) • Public bodies (exc. direct effect of the directives) • The right to claim damages (compensation) • Loyalty principle (interpretation) • No “race to the bottom” The right to independent assistance before the equality body(race, gender d.)! Supervision of the E. Commission (system, infringement p.) The ECJ (judgments, preliminary rulings)

  14. The role of the Ombudsman • You canassist the applicant in the (judicial) cases against the state + intervene as a third party. • Proceedings before the Constitutional Court • In perspective: raising issues for preliminary rulings (ICJ) directly or just indirectly? • Strategic decisions / strategic supervision / strategic litigation / progressive approach.

  15. A Croatian model of a Right to Equal Treatment • A unique one, a living instrument. Equal rights, national equality and equality of genders (highest values) Indictment = discrimination; severe forms: segregation, multiple, duration, subsequent; private relationships are covered (hereditary issues, membership in civil associations) procedurally: • Positive obligation to report the case by all public bodies. • actio popularis (group action) • Third party interventions • speedy trial, always a extraordinary remedy before SC • Sanctions (aggravating circumstances, publication of the judgement • Mediation • A challenge for everybody.Especially you! You are a role model!

  16. Information: Case-law HUDOC (ECHR judgements, Information Notes on the Court’s case-law) http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en CURIA (EU) http://curia.europa.eu/jcms/jcms/j_6/(from June 1997-) http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en (from 1954-) EQUINET, the European Network of specialised Equality Bodies http://www.equineteurope.org/ The Equal Rights Trust (International specialised NGO) http://www.equalrightstrust.org/ The Equal Rights Review http://www.equalrightstrust.org/publications/index.htm?type=21 European Anti-discrimination Law Reviewhttp://www.migpolgroup.com/publications_info.php?id=17 TANDIS (OSCE) http://tandis.odihr.pl/?p=home Fundamental Rights Agency (FRA) http://infoportal.fra.europa.eu/InfoPortal/caselawFrontEndAccess.do?homePage=yes

  17. Information: literature O. De Schutter v The Prohibition of Discrimination under European Human Rights Law, Relevance of EU Racial and Employment Equality Directives, European Commission, 2005 D. Schiek,L. Waddington, M. Bell (editors):, Cases Materials And Texts On National, Supranational And International Non-Discrimination Law(Iuscomunae casebooks for the common law of Europe), Hart Publishing, 2007 Compilation of case law on the treatment between women and men and on non-discrimination in the EU (third edition) European Commission, 2010 Harris, O’Boyle, Warbrick: Law of the ECHR, Second edition, Oxford University Press, 2009 FRA/ECHR Handbook on European Case-Law on Non-Discrimination (see: http://www.equineteurope.org/713334.html) forthcoming in 2011, also in Croatian

  18. Hvala! Xваља! Köszönöm! Grazie! Dankeschön! Fala / Parikejrav! Sajë! Thank you! Merci! Boštjan Vernik Šetinc, Advocate of the Principle of Equality (EOO) www.zagovornik.net bostjan.vernik-setinc@gov.si

More Related