European protection of human rights

1. European protection of human rights Council of Europe and the European Convention on Human Rights European Union and the Charter of Fundamental Rights

2. 1. Council of Europe and the European Convention on Human Rights (ECHR) 1.1. The group of protected rights • Right to life (Article 2) • Prohibition of torture and inhuman or degrading treatment or punishment (Article 3) • Prohibition of slavery and forced labour (Article 4) • Right to liberty and personal security (Article 5) • Right to fair trial (Article 6) • Principle of nullum crimen sine lege, nulla poena sine lege (Article 7) • Integrity of private and family life, of residence, of correspondence (Article 8) • Freedom of thought, conscience and religion (Article 9) • Freedom of expression (Article 10)

3. Freedom of assembly and of association (Article 11) • Right to marry and right to found a family (Article 12) • Right to remedy (Article 13) • Non-discrimination of rights as stated in the Convention (Article 14) • Right to property, education and vote(Additional Protocol 1) • Freedom of movement, prohibition of the event of citizens’ expulsion (Additional Protocol 4) • Prohibition of death penalty in peace (Additional Protocol 6) • Procedural guaranties of the event of foreigners’ expulsion , convicts’ right to appeal,compensation, legal equality of consorts (Additional Protocol 7) • Non-discrimination (Additional Protocol 12) • Absolute prohibition of death penalty (Additional Protocol 13)

4. 1.2. European Court of Human Rights (ECtHR) • Until 1998 (until Additional Protocol 11) procedure of two-levels: Committee, Court (plaintiff can turn to Committee → lack of subjective right to appeal) • From 01.11.1999 only Court → effective legal protection, but NO international appeal → NO annulment of decision of national court! decision of declarative nature, but in Hungary reason for a new trial! European minimum requirements → „ margin of appreciation” of states: ECOSOC wider, civil-political narrower also legal dispute betwen states: Au. vs. Italy; Ireland vs. UK

5. 1.3. Conditions of individual complaint • Injury of right as stated in ECHR • Complaint of the injured person • Against authority with power of the state sharing in ECHR • Exhaustion of ordinary remedy (effective remedy) → Hungary: revisional application yes, Constitutional Court no • Within 6 months from the date of delivery of the legally binding decision • Cases finished after or proceeding at the coming into force of ECHR

6. 1.4. Periods of the procedure • Period of acceptability • Councils of three judges → dismiss (unanimity) or acceptability • Period on the merits a) Decision on merits of proceeding Chamber of 7 (with participation of judge of member state): dismiss or violation of ECHR → appeal of parties ( 3 months) or decision of Chamber b) About acceptability of the decision of Council of 5 of Big Chamber of 17 c) Decison on merits of Big Chamber of 17 • Establishment of violation of ECHR, refundable damage + expenses • 40 000 complaints a year → Additional Protocol 14: dismiss for lack of significant injury

7. 1.5. Hungarian accession to ECHR • Act XXXI of 1993 enactment of ECHR (not compensation, until 2000 no judicial way in procedure of petty offences) • Act XLII of 1998 enactment of Additional Protocol 11 1.6. Important Hungarian cases in Strasbourg • Case of Adelmanné (1998): Article 6, protraction of procedure (13, 5 years) • Case of Magyar (2001): Article 6, protraction of procedure (adminstrative negligence) • Case of APÜSZ (2000): Article 6, fair trial, equal chances • Case of Dallos (2001): reverseal of criminal classification → dismiss • Case of Sárközy (1997): Article 8, opening of prison correspondence • Case of Farkas (2000): Article 3, police cruelty → dismiss

8. Case of Kmetty (2003): Article 3, police cruelty (lack of examination) • Case of Balogh (2004): Article 3, police cruelty (lack of evidence of the authorities) • Case of Maglódi (2004): Article 5, 4 years and 5months long custody • Case of Rekvényi (1999): Article 10 and 11, freedom of expression, freedom of assembly → dismiss • Case of Bukta (2007): Article 10 and 11, freedom of expression, freedom of assembly • Case of Vajnai (2008): Article 10, freedom of expression • Case of TASZ (2009): Article 10, freedom of information

9. 2. European Union and the Charter of Fundamental Rights 2.1. European Court of Justice (ECJ) • 1957 Treaty of Rome: 4 fundamental freedom → free flow of goods, service, capital, workforce • Until Treaty of Maastricht (1992) lack of protection of human rights in foundation treaties of European Community • Establishment of legal protection on communal level by European Court a) Against acts of communal law: - Case of Stauder (1969): general principle - Case of Internationale Handelsgesellschaft (1970): common constitutional tradition of member states - Case of Nold (1974): treaties on human rights

10. b) Against acts of member states: - Case of Wachauf (1989): in the course of enforcement of communal law - Case of Rutili (1975): discretion only in justified instance - Case of Demirel (1987): examination of conformity to ECHR is not sphere of auhority - Case of ERT (1991): respect for human rights by member states in case of deviation from Treaty of Rome • Jurisdiction of ECtHR: if state sharing in ECHR restricts rights as stated in ECHR in the course of enforcement of communal order • Case of Matthews (1999): lack of suffrage of inhabitants of Gibraltar

11. 2.2. Legal protection in legislative way • Treaty of Maastricht (1992): accession to ECHR only with amendment of foundation treaty, with will of the member states (European Court 1996) • Treaty of Amsterdam (1997): Article 6 → respect for human rights Article 7: right of membership can be suspended (January-August 2000: Austria) • Treaty of Nice (2000): Charter of Fundamental Rights: dignity, freedom, equality, solidarity, civil rights • Constitutional Treaty of Rome (2004): Charter of compulsory nature – failure • Lisbon Treaty (2007): valid from December 1, 2009 – binding Charter

12. Thank you for your attention!