International and European Human Rights Law

1. International and European Human Rights Law Regional HR protection: ECHR

2. European Convention on Human Rights • Background • Reaction to the past experience • Reaction to the political situation at that time • Concluded in 1950, entered into force in 1953 • Effective HR system • With institutional guarantee - “to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” • Most developed so far

3. ECHR • European catalogue of political and civil rights • Convention • Protocols • Court’s case-law • Open only for CoE members

4. European Court of Human Rights • Judges (equals to the number of signatory states - currently 47) • Previous structure - before Protocol 11 • Commission • Court • Court is divided into 5 sections • Within each section • Committee (3 judges) - preliminary assessment • Chambers (7 judges) - main assessment • Grand Chamber (17 judges) - most important cases

5. ECtHR • Jurisdiction (Art 1) - “The High Contracting Parties shall secure to [a] everyone within their jurisdiction [b] the rights and freedoms defined in Section I of this Convention) • Exercises its jurisdiction through • Inter-state communications (Art 33) • Individual communications (Art 34) • Advisory jurisdiction (Art 31(2), 47) • No reporting mechanism

6. Admissibility criteria (Art 35), I • Domestic remedies exhausted • Cyprus v Turkey • Accessible under normal circumstances • Capable of providing redress • Reasonable prospects of success • Arguments given in substance • EXCEPTION - inadequate or ineffective or there are special circumstances • Filed within 6 months from the final domestic judgment • Starts from the publishing of the decision • Stops when the first letter arrives to ECtHR • EXCEPTION - continuing violations

7. Admissibility criteria (Art 35), II • Author is the victim of a violation • Klass v Germany • Karner v Austria • Not anonymous • No substantially the same as a matter that has already been submitted to ECtHR or another int’l institution • Not manifestly ill-founded • Not abusive of the right of petition

8. Admissibility criteria (Art 35), III • Compatible with ECHR • Any person, NGO or group of persons • Violation was within a jurisdiction of the respondent state • Within the time period, ECHR was in force in regard to the respondent state • Concerns rights/freedoms enshrined in ECHR

9. Procedure • Usually based on written submissions - can also be oral • ECtHR may undertake an investigation (Art 38(1)) • ECtHR may allow a third party intervention (Art 36(2)) • A party may decide to request a referral of the matter to the Grand Chamber (Art 43) • raises a serious question affecting the interpretation or application of the Convention / protocols • raises a serious issue of general importance

10. Interim measures • Measures taken while procedures are under-going • Normally the ECtHR cannot interfere within the internal matters of the state • Used only in a very restricted occasions • BUT Mamatkulov and Askarov v Turkey (2005) - Art 13 and 34 in cooperation

11. Friendly settlement • Encouraged • No pre-determined procedure • The solution reached must meet the conditions of “respect for human rights as defined in”ECHR • Friendly settlement v unilateral declaration (offer)

12. Striking out the case (Art 37) • On three occasions • Applicant does not intend to pursue his/her application • The matter has been resolved • ECtHR itself decides that it is no longer justified to continue the examination • Karner v Austria

13. Issues of Interpretation • Bases for interpreting ECHR • The aim / purpose of ECHR, general context and text of ECHR • Dynamic interpretation • Proportionality principle • Autonomous interpretation • Margin of appreciation

14. Interpretation,margin of appreciation • One of the most important concepts in ECHR system - discretion granted to national authorities to decide over the measures implementing rights/freedoms • Based on the philosophical values of ECHR • Evolutive interpretation • Subsidiarity • Democracy • Cultural diversity • Interpretation technique, which balances the interests of state and public with the rights of individuals

15. Margin of appreciation • Used mainly in three category of cases • Where the provision involves a balancing of interests, 2nd paras of arts 8-11 • Where the provision contains vague expressions • Where the Court has to determine whether a state has failed to comply with a positive obligations to protect a Convention right • Main cases • Handyside v UK (1976) • Sunday Times v UK (1979)

16. Margin of appreciation • Factors considered when applying the doctrine • Consensus among states • Right under examination • Duty of a state • Legitimate aim pursued • Activity being regulated • Circumstances surrounding the case • Actual wording of the ECHR provision

17. Violation on state’s part • Violating state has a duty • To discontinue the violation of international law • To compensate the harm done and to restore the previous situation as much as possible • To take measures to avoid subsequent breaches of international law

18. Just satisfaction (Art 41) “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” • The Court has adopted a wider interpretation of Art 41 than the actual wording would suggest • Awarding satisfaction is the Court’s right, not obligation • Parties may agree on a friendly settlement in regard to just satisfaction

19. Just satisfaction, types • Pecuniary damages • material or monetary losses that the victim has suffered directly of derived from the violation of ECHR, includes loss of opportunities • Non-pecuniary damages • physical or moral experience, suffering, anguish, pain, stress, uncertainty etc that the victim has had to suffer as a result of the violation of ECHR • Depends on the personality of the victim, the amount of money requested and on the persuasiveness of evidence • Cost of court proceedings

20. Just satisfaction, conditions • Applicant has requested • Violation is found • Applicant has evidences the claim • Existence of direct victim • The Court considers just satisfaction necessary

21. Other duties deriving from the found violation • Discontinuing of violation and restoration of previous situation - specific measure • Measures to avoid subsequent violations - general measure

22. General measure • Change of legislation or administrative practice • The Court does not consider it as “just satisfaction” - Dudgeon v UK (1983)

23. Specific measure • Foremost for the purposes of restoring the applicant • Annulment of national judgment/sanction • Re-opening of a case (restitutio in integrum)

24. Execution • Through juridical means - decisions of ECtHR are obligatory to signatory states (Art 46) • Through political means - Committee of Ministers • ComMin periodically requests governments to inform it of measures they are taking to implement specific recommendations • States not following acting on recommendations are addressed with a recommendation, asking it to change the situation in law and/or in practice • Art 8, Statute of CoE - expulsion of a state

25. Challenges to ECtHR • Overload of applications and cases • Slowness of bringing about changes in national systems