International instruments for the protection of human rights
International instruments for the protection of human rights
European organisations
European Court of Human Rights:
A) Composition and structure
B) Jurisdiction
C) Proceedings
D) Sanctions
E) Cases
Adopted by the United Nations General Assembly 10 December 1948 in Paris
Adopted by the United Nations General Assembly 10 December 1948 in Paris
Preamble and 30 articles outlining the UN view on the human rights guaranteed to all people
A powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles
Signed in 1950; entered into force in 1953
Signed in 1950; entered into force in 1953
Established the first international complaints procedure and the first international court of human rights
Transformation of abstract human rights ideals into a concrete legal framework
Problems: concerns over “sovereignty” and a reluctance to take the concept of a state accountability too far
A regional response to the attrocities committed in Europe during the Second World War
A regional response to the attrocities committed in Europe during the Second World War
Regional integration and institutionalization of common values as a way to make sure Germany would be a force for peace together with other West European states
Desire to bring together the non-Communist countries of Europe and consolidate their unity in the face of the Communist threat
the right to life,
the right to life,
the right to a fair hearing,
the right to respect for private and family life,
freedom of expression,
freedom of thought, conscience and religion
the protection of property.
torture and inhuman or degrading treatment or punishment,
torture and inhuman or degrading treatment or punishment,
slavery and forced labour,
death penalty,
arbitrary and unlawful detention,
discrimination in the enjoyment of the rights and freedoms set out in the Convention.
The right to life; freedom from torture and inhuman or degrading treatment; freedom from slavery, servitude or forced labour; liberty and security of person; detention only in accordance with procedures prescribed by law; the right to a fair and public hearing; respect for privacy and family life; freedom of thought, conscience and religion; freedom of expression, peaceful assembly and association; the right to marry and found a family; freedom from discrimination
The right to life; freedom from torture and inhuman or degrading treatment; freedom from slavery, servitude or forced labour; liberty and security of person; detention only in accordance with procedures prescribed by law; the right to a fair and public hearing; respect for privacy and family life; freedom of thought, conscience and religion; freedom of expression, peaceful assembly and association; the right to marry and found a family; freedom from discrimination
The right to property; the right to education; the obligation to hold free elections; freedom from imprisonment for civil debts; freedom of movement and residence; freedom from exile; no collective expulsion of aliens; abolition of the death penalty; the right to compensation for a miscarriage of justice; immunity from double prosecution for the same offence; equal rights and responsibility of spouses
The right to property; the right to education; the obligation to hold free elections; freedom from imprisonment for civil debts; freedom of movement and residence; freedom from exile; no collective expulsion of aliens; abolition of the death penalty; the right to compensation for a miscarriage of justice; immunity from double prosecution for the same offence; equal rights and responsibility of spouses
1st generation: Civil and political rights
1st generation: Civil and political rights
(freedom of speech, the right to a fair trial, freedom of religion, voting rights)
2nd generation: Economic, social and cultural rights (employment, social security, housing, education)
3rd generation: solidarity rights
(right to peace, right to clean environment)
The Council of Europe
The Council of Europe
The European Union
Established in 1949 by a group of 10 states to promote democracy, the rule of law, and greater unity among the nations of Western Europe
Established in 1949 by a group of 10 states to promote democracy, the rule of law, and greater unity among the nations of Western Europe
Until 1990 confined to Western Europe; today: 47 member states
Conditions for admission: a genuine democracy that respects the rule of law and human rights; a party to the Convention
Committee of Ministers: foreign ministers of each member state,
Committee of Ministers: foreign ministers of each member state,
Parliamentary Assembly: MPs from the parliament of each member state,
The Congress of Local and Regional Authorities: promoting local and regional democracy, social inclusion, etc.
The Commissioner for Human Rights - an independent institution, promotes respect for human rights in member states.
The Treaty of Paris (1951) establishing the European Coal and Steel Community
The Treaty of Paris (1951) establishing the European Coal and Steel Community
The Treaty of Rome establishing the European Economic Community (1957)
The Maastricht Treaty (1992): the European Union
The Lisbon Treaty (2009)
European Commission
European Commission
European Parliament
Council of the EU
Court of Justice of the EU (Luxembourg)
A Council of Europe institution
A Council of Europe institution
Mission: to enforce the Convention for the Protection of Human Rights and Fundamental Freedoms
Number of judges: equal to the number of High Contracting Parties (Member States)
Number of judges: equal to the number of High Contracting Parties (Member States)
They “shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurists of recognised competence”
They “shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurists of recognised competence”
Judges sit in their individual capacity and may not engage in any activity that is incompatible with their independence, impartiality or the demands of a full-time office
Elected by the Parliamentary Assembly by a majority of votes cast from a list of 3 candidates submitted by a High Contracting Party
Elected by the Parliamentary Assembly by a majority of votes cast from a list of 3 candidates submitted by a High Contracting Party
Serve for a nine-year term
The term of any judge expires when he or she reaches the age of 70
Single judge
Single judge
Committees (3 judges)
Chambers (7 judges)
Grand Chamber (17 judges)
Admissibility of individual applications
Admissibility of individual applications
3 judges
3 judges
By unanimous vote may declare inadmissible or strike out of their list of cases any individual application where such a decision can be taken without further examination
7 judges
7 judges
Decide on the admissibility and merits of cases not eliminated by a Committee, and on the admissibility and merits of inter-State applications
If a case raises serious question of interpretation of the Convention, or if there is a risk that its judgment may be inconsistent with a previous judgement, a Chamber may relinquish jurisdiction in favour of the Grand Chamber
17 judges
17 judges
A panel of judges of the Grand Chamber may consider requests from any party to a case that has been decided by a Chamber to review the case and render its own judgment
If a case raises “a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance (Article 43)
1) Article 47: the Committee of Ministers may request the Court to give an advisory opinion on any legal question concerning the interpretation of the Convention
1) Article 47: the Committee of Ministers may request the Court to give an advisory opinion on any legal question concerning the interpretation of the Convention
2) Articles 33 and 34: Contentious jurisdiction in inter-state and individual cases
“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”
“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”
“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”
“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”
Individual applications
Individual applications
Inter-State applications
Most applications before the Court are individual applications lodged by private persons. A State may also lodge an application against another State Party to the Convention; this is called an inter-State application.
One of the most effective means of protecting human rights
One of the most effective means of protecting human rights
Essential element of the supervisory system established by the Convention
Convention protects the rights of individuals (natural or legal persons), but not groups as such
Only parties who are directly affected by a violation of the rights may bring a claim in Strasbourg
Jurisdiction of the ECHR
Jurisdiction of the ECHR
Ratification of the Convention
Breach of Convention rights
Victim
Exhaustion of domestic remedies
6 month deadline
The Court is competent to examine any matters arising since the State ratified the Convention
The Court is competent to examine any matters arising since the State ratified the Convention
In a number of cases, the Court has reviewed matters that originally arose prior to that time, primarily in connection with claims that the length of domestic legal proceedings had contravened the “reasonable time” requirement under Article 6
The Court may deal with a matter only after all domestic remedies have been exhausted and within a period of 6 months from the date on which the final decision was taken
The Court may deal with a matter only after all domestic remedies have been exhausted and within a period of 6 months from the date on which the final decision was taken
Once the Court declares an application admissible, there are 2 courses of action (Article 38):
Once the Court declares an application admissible, there are 2 courses of action (Article 38):
1) Examination of a case
2) Friendly settlement
The Court pursues its examination of a case together with the representatives of the parties
The Court pursues its examination of a case together with the representatives of the parties
The Court can undertake any investigation it deems necessary
The States concerned should “furnish all necessary facilities”: making witnesses available, permitting access to detention facilities etc.
1) mediation between the parties
1) mediation between the parties
2) any friendly settlement should be made “on the basis of respect for human rights”
Many friendly settlements have been reached when the government of the respondent State has taken administrative or legislative measures to rectify a possible violation of the Convention
Many friendly settlements have been reached when the government of the respondent State has taken administrative or legislative measures to rectify a possible violation of the Convention
Others have been reached on the payment of an agreed sum of money to the applicant
Should the Court effect a friendly settlement, it strikes the case out of its list in a decision that takes the form of a judgment
Should the Court effect a friendly settlement, it strikes the case out of its list in a decision that takes the form of a judgment
The Court forwards the judgement to the Committee of Ministers, whose role is to supervise the execution of any undertakings which have been attached to the settlement
Unless there are “exceptional circumstances”, all hearings are open to the public
Unless there are “exceptional circumstances”, all hearings are open to the public
In all circumstances, the judgement is announced publicly
The Court: not required to arrive at a unanimous decision; each judge entitled to submit his or her opinion which will be published with the majority opinion
If a High Contracting Party is in breach of its obligations under the Convention, and if its domestic law does not provide for adequate reparation of the breach, “the Court shall, if necessary, afford just satisfaction to the injured party”
If a High Contracting Party is in breach of its obligations under the Convention, and if its domestic law does not provide for adequate reparation of the breach, “the Court shall, if necessary, afford just satisfaction to the injured party”
In many cases: the finding of a violation is in itself just satisfaction
In many cases: the finding of a violation is in itself just satisfaction
In others: a monetary compensation
Return of unlawfully expropriated property, etc.
If an applicant does not have sufficient means to meet the costs, the president of a Chamber may grant free legal aid effective from the moment that the respondent Party submits its written observations on the admissibility of the application, or when the time limit for their submission has expired
If an applicant does not have sufficient means to meet the costs, the president of a Chamber may grant free legal aid effective from the moment that the respondent Party submits its written observations on the admissibility of the application, or when the time limit for their submission has expired
A form of declaration of means certified by the appropriate domestic authority
Composed of the foreign ministers of all member states
Composed of the foreign ministers of all member states
Serve in their capacity as government representatives
Supervises the execution of the final judgement of the Court
Supervision: monitoring legislative or administrative reforms instituted by States in response to a finding of a violation or, in the case of jugments for “just satisfaction”, ensuring that the State has made its payment to the individual
Supervision: monitoring legislative or administrative reforms instituted by States in response to a finding of a violation or, in the case of jugments for “just satisfaction”, ensuring that the State has made its payment to the individual
Has no power to intervene directly in the supervision and execution of judgments by the offending State
Has no power to intervene directly in the supervision and execution of judgments by the offending State
Some of the most serious sanctions – enshrined in the Statute of the Council of Europe
Article 3 of the Statute provides that respect for human rights is a fundamental principle underlying participation in the Council
Article 3 of the Statute provides that respect for human rights is a fundamental principle underlying participation in the Council
Article 8 empowers the Committee of Ministers to suspend or even to expel from the Council of Europe any member State guilty of serious human rights violations
The question on how far the Court is entitled to go in monitoring the laws and practices of Contracting States: a question about the impact of human rights law on national sovereignty and the role of international adjudication in establishing and enforcing uniform standards
The question on how far the Court is entitled to go in monitoring the laws and practices of Contracting States: a question about the impact of human rights law on national sovereignty and the role of international adjudication in establishing and enforcing uniform standards
The Court is required to decide difficult and important questions concerning the relationship between the individual and the State
The Court establishes precedents: case law
In Austria, where the Convention has the rank of constitutional law, the Code of Criminal Procedures was modified as well as the system of legal aid;
In Austria, where the Convention has the rank of constitutional law, the Code of Criminal Procedures was modified as well as the system of legal aid;
Belgium: amendments to the Penal Code, its vagrancy legislation, and its Civil Code to ensure equal rights to legitimate and illegitimate children;
Germany: the Code of Criminal Procedure concerning pre-trial detention was amended
Ireland: court proceedings simplified and civil legal aid and advice schemes set up
Brought ECHR into domestic law for the UK
Brought ECHR into domestic law for the UK
The Act creates a statutory requirement that all legislation (past or future) be read and given effect in a way that is compatible with the Convention
Introduces a new ground of illegality into proceedings by way of judicial review, namely, a failure to comply with the Convention rights
Introduces a new ground of illegality into proceedings by way of judicial review, namely, a failure to comply with the Convention rights
Any court determining a question that has arisen in connection with the Convention should take into account the jurisprudence of the Strasbourg court
When legislation is introduced into Parliament for a second reading, the introducing minister must make a statement that it is compatible with the Convention
When legislation is introduced into Parliament for a second reading, the introducing minister must make a statement that it is compatible with the Convention
The Prevention of Terrorism Act (1984) authorized arrest without warrant of a person who is suspected to be involved with “acts of terrorism” in Northern Ireland; provided for detention after arrest for not over 48 hours, except if the Secretary of State extends this period to not more than 5 days
The Prevention of Terrorism Act (1984) authorized arrest without warrant of a person who is suspected to be involved with “acts of terrorism” in Northern Ireland; provided for detention after arrest for not over 48 hours, except if the Secretary of State extends this period to not more than 5 days
The applicants: neither charged nor brought before a court during their detention; damages: (administrative detention for the purpose of gathering information)
The Court: the need for a proper balance between the defence of the institutions of democracy and the protection of human rights
The Court: the need for a proper balance between the defence of the institutions of democracy and the protection of human rights
Conclusion: detention of suspected terrorists for 6 days and 14 hours and 4 days and 6 hours respectively was justified by the public emergency
Domestic margin of appreciation (derogation) accompanied by European supervision
ECHR: set up in 1959; The Court is based in Strasbourg
rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights.
Since 1998: a full-time court; individuals can apply directly.
In almost 50 years - more than 10,000 judgments - binding on the countries concerned; have led governments to alter their legislation and administrative practice in a wide range of areas.
The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe.
5 May 1949 Creation of the Council of Europe
4 Nov. 1950 Adoption of the Convention
3 Sept. 1953: Entry into force of the Convention
21 Jan. 1959 First members of the Court elected by the Consultative Assembly of the Council of Europe
Established 1959 (initially); 1998 (permanent)
Established 1959 (initially); 1998 (permanent)
47 member states of the Council of Europe
Location: Strasbourg, France
Authorized by European Convention on Human Rights Decisions appealed to Grand Chamber of the European Court of Human Rights
47 judges, one from each of the 47 member states
Website http://echr.coe.int
23-28 Feb.1959 The Court’s first session
23-28 Feb.1959 The Court’s first session
18 Sept. 1959 The Court adopts its Rules of Court
14 Nov. 1960 The Court delivers its first judgment: Lawless v. Ireland
1 Nov. 1998 Entry into force of Protocol No. 11 to the Convention, instituting “the new Court”
18 Sept. 2008 The Court delivers its 10,000th judgment
1 June 2010 Entry into force of the Protocol No. 14, whose aim is to guarantee the long-term efficiency of the Court
Derogation: lessening or restriction of the authority, strength, or power of a law, right or obligation
Derogation: lessening or restriction of the authority, strength, or power of a law, right or obligation
In the ECHR: A provision that enables a signatory state to avoid the obligations of some but not all of the substantive provisions of the rest of the Convention. Art. 15: d. available in time of war or other public emergency threatening the life of the nation
On the merits: referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome.
On the merits: referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome.
The European Convention on Human Rights and Fundamental Freedoms (1950) ___(draft, passive) by the Concil of Europe, a body set up after the Second World War to achieve unity among its members in matters such as the protection of fundamental human rights. It ___(draft, passive) in the light of the atrocities that ____(take) place before and during the Second World War and in its preamble the Convention ___(remind) the ‘High Contracting Parties of the common heritage of political traditions, ideals, freedom, and the rule of law ____(share) by their governments.
The European Convention on Human Rights and Fundamental Freedoms (1950) ___(draft, passive) by the Concil of Europe, a body set up after the Second World War to achieve unity among its members in matters such as the protection of fundamental human rights. It ___(draft, passive) in the light of the atrocities that ____(take) place before and during the Second World War and in its preamble the Convention ___(remind) the ‘High Contracting Parties of the common heritage of political traditions, ideals, freedom, and the rule of law ____(share) by their governments.
The European Convention on Human Rights and Fundamental Freedoms (1950) was drafted by the Concil of Europe, a body set up after the Second World War to achieve unity among its members in matters such as the protection of fundamental human rights. It ws drafted in the light of the atrocities that took place before and during the Second World War and in its preamble the Convention reminds the ‘High Contracting Parties of the common heritage of political traditions, ideals, freedom, and the rule of law shared by their governments.
The European Convention on Human Rights and Fundamental Freedoms (1950) was drafted by the Concil of Europe, a body set up after the Second World War to achieve unity among its members in matters such as the protection of fundamental human rights. It ws drafted in the light of the atrocities that took place before and during the Second World War and in its preamble the Convention reminds the ‘High Contracting Parties of the common heritage of political traditions, ideals, freedom, and the rule of law shared by their governments.
Further, the preamble ___(state) that the Contracting Parties should resolve to take steps for the collective enforcement of certain of the rights ___(contain) in the Universal Declaration of Human Rights 1948, this being one effective way of ___(ensure) future peace and stability. The Convention ___(sign, passive) by the High Contracting Parties in 1950, and ___(enter) into force in 1953.
Further, the preamble ___(state) that the Contracting Parties should resolve to take steps for the collective enforcement of certain of the rights ___(contain) in the Universal Declaration of Human Rights 1948, this being one effective way of ___(ensure) future peace and stability. The Convention ___(sign, passive) by the High Contracting Parties in 1950, and ___(enter) into force in 1953.
Further, the preamble states that the Contracting Parties should resolve to take steps for the collective enforcement of certain of the rights contained in the Universal Declaration of Human Rights 1948, this being one effective way of ensuring future peace and stability. The Convention was signed by the High Contracting Parties in 1950, and entered into force in 1953.
Further, the preamble states that the Contracting Parties should resolve to take steps for the collective enforcement of certain of the rights contained in the Universal Declaration of Human Rights 1948, this being one effective way of ensuring future peace and stability. The Convention was signed by the High Contracting Parties in 1950, and entered into force in 1953.
The Court lies at the heart of the ____ of the Convention and ___of Committees, who consider the initial ___ of applications and have the power to ____cases from its list, and Chambers of the Court, who decide on the admissibility and ___ of the application.
The Court lies at the heart of the ____ of the Convention and ___of Committees, who consider the initial ___ of applications and have the power to ____cases from its list, and Chambers of the Court, who decide on the admissibility and ___ of the application.
The Court lies at the heart of the enforcement of the Convention and comprises of Committees, who consider the initial admissibility of applications and have the power to strike out cases from its list, and Chambers of the Court, who decide on the admissibility and merits of the application.
The Court lies at the heart of the enforcement of the Convention and comprises of Committees, who consider the initial admissibility of applications and have the power to strike out cases from its list, and Chambers of the Court, who decide on the admissibility and merits of the application.
Applications can either be brought by member states on behalf of individual victims of ____ by another High Contracting ___, or from individual___ claiming to be victims of a ___ of the Convention. With respect to state ___, a member state may bring an application against another state in relation to individual ____, either its own citizens or those of another state.
Applications can either be brought by member states on behalf of individual victims of ____ by another High Contracting ___, or from individual___ claiming to be victims of a ___ of the Convention. With respect to state ___, a member state may bring an application against another state in relation to individual ____, either its own citizens or those of another state.
Applications can either be brought by member states on behalf of individual victims of breaches by another High Contracting Party, or from individual applicants claiming to be victims of a violation of the Convention. With respect to state applications, a member state may bring an application against another state in relation to individual victims, either its own citizens or those of another state.
Applications can either be brought by member states on behalf of individual victims of breaches by another High Contracting Party, or from individual applicants claiming to be victims of a violation of the Convention. With respect to state applications, a member state may bring an application against another state in relation to individual victims, either its own citizens or those of another state.
Article 34 of the Convention ___that the Court may receive applications from any person, ___organization, or group of individuals ___to be a victim of a violation by one of the High Contracting Parties. A person includes both ___ and legal persons, such as ___, but does not include an unborn child.
Article 34 of the Convention ___that the Court may receive applications from any person, ___organization, or group of individuals ___to be a victim of a violation by one of the High Contracting Parties. A person includes both ___ and legal persons, such as ___, but does not include an unborn child.
Article 34 of the Convention provides that the Court may receive applications from any person, non-governmental organization, or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties. A person includes both natural and legal persons, such as companies, but does not include an unborn child.
Article 34 of the Convention provides that the Court may receive applications from any person, non-governmental organization, or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties. A person includes both natural and legal persons, such as companies, but does not include an unborn child.
