Class: cases that explore the legal basis and reasoning of Smith’s essays
European HR Institutions
European Union ’Constitutional’ Provisions
Treaty of the European Union, Art. 6:
1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
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.
3. The Union shall respect the national identities of its Member States.
4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
Art. 11:
1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be […] to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
European Union Human Rights as the Gatekeeper
Treaty of the European Union, Art. 49:
Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.
1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1), and address appropriate recommendations to that State. Before making such a determination, the Council shall hear the Member State in question and, acting in accordance with the same procedure, may call on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question.
The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The Council, meeting in the composition of the Heads of State or Government and acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of principles mentioned in Article 6(1), after inviting the government of the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of this Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.
P. v. S. and Cornwall County Council, Case C-13/94 (30 April 1996)
European Court of Justice
Society for the Protection of the Unborn Child Ireland Ltd. v. Steven Grogan, Case C-159/90 (4 October 1991)
European Court of Justice
Kadi and Al Barakaat International Foundation v Council and Commission, Cases C-402/05 P and C-415/05 P (3 Sept. 2008)
European Court of Justice
The Charter of Fundamental Rights of the EU
The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.
Organization for Security and Cooperation in Europe
Council of Europe
Council of Europe HR Institutions
European Court of Human Rights Interpretation Method
”Any High Contracting Party may refer to the Commission, through the Secretary General of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party.”
Austria v. Italy:
”[T]he obligations undertaken by the High Contracting Parties in the Convenion are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contractin Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves.”
The Greek Case & Cyprus v. Turkey Cases:
Scandinavian countries and the Netherlands (and France in the latter) instituted inter-state complaints without any particular national interest or citizenship interest involved.
Inter-state Complaints
The Greek Case:
Coup d etat in Greece
Case brought to Commission
Greece denounces the ECHR and withdraws from the CoE
Commission continued investigation and decision in the case (now 58 (2))
The coup government falls
France and others v. Turkey:
Military government in Turkey
Case brought to Commission
Friendly settlement reached where Turkey will regularly report to the Commission on measures in its internal law to prevent torture
CoM requests that Turkey take measures to end the violations and urged all parties ”to resume intercommunal talks”
Two years later, the CoM regreted no steps had been taken; decided ”strongly to urge the parties to resume intercommunal talks […];” and considered ”this decision as completing its considerations of the case Cyprus versus Turkey.”
Advisory Opinions
Article 47 (1):
”The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Covnetion and the protocols thereto.”
CoM Request for Advisory Opinion on CIS Convention’s compatibility with the ECHR:
”The Court considers that the purpose of the provisions excluding its advisory jurisdiction is to avoid the potential situation in which the Court adopts in an advisory opinion a position which might prejudice its later examination of an application brought under Article 33 and 34 of the Convention […].”
European Court of Human Rights ”Victim”
Article 34
”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.”
European Court of Human Rights Potential Victims
X v. Sweden, No. 6853/74 (), para. 236.
European Court of Human Rights Potential Victims
Open Door and Dublic Well Woman v. Ireland, No. 6959/75 (29 October 1992), para. 44
European Court of Human Rights Potential Victims
Klass and Others v. Germany, No. 6853/74 (6 September 1978), paras. 34 & 36:
European Court of Human Rights ’Waived’ Rights
The Vagrancy Case, (18 June 1971), para. 65:
European Court of Human Rights Indirect Victims
X v. France, (31 March 1992):
European Court of Human Rights Indirect Victims
Karner v. Austria, 38 EHRR 24 (2004):
Applicant died during proceedings and parents explicitly did not wish to pursue the matter.
Applicant’s attorney requested to continue the matter.
”[T]his Court has to determined whether the application in the present case should also be struck out of the list. In formulating an appropriate answer to this question, the object and purpose of the Convention system as such must be taken into account.”
”Article 34 does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention.”
”[H]uman rights cases before the Court generally also have a moral dimension.” ”[J]udgments in fact serve not only to decide those cases brought before the Court, but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties.”
”Although the primary purpose of the Convention is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights […].”
”The Court considers that the subject matter of the present application […] involves an important question of general interest not only for Austria but also for other States Parties to the Convention.”
European Court of Human Rights Exhaustion of Domestic Remedies
Article 35 (1):
”The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law […].”
European Court of Human Rights Exhaustion of Domestic Remedies
Isayeva, Yusupova, Bazayava v. Russia, (24 February 2005), paras. 144-145:
”[T]he Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system […].”
”The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness.”
”No recourse should be had to remedies which are inadequate or ineffective.”
”Article 35 (1) must be applied with some degree of flexibility and without excessive formalism. […T]he rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operation, as well as the personal circumstances of the applicant.”
”It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies.”
European Court of Human Rights Exhaustion of Domestic Remedies
Isayeva, Yusupova, Bazayava v. Russia, (24 February 2005):
European Court of Human Rights Exhaustion of Domestic Remedies
Cyprus v. Turkey IV, 2004 ECHR 172(24 February 2005), paras. 144-145:
”[I]n the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof.”
”It is the responsibility of the respondent Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the aggrieved individuals’ complaints and offered reasonable prospects of success.”
After this is demonstrated by the respondent Government, the applicant must ”establish that the remedy advanced […] was in fact exhausted or was for some reason inadequate or ineffective in the particular circumstance of the case, or that there existed special circumstances absolving […] the requirement […].”
Thereafter, it is once again the respondent Government that would have the burden of demonstrating the failure to fulfill an effective remedy.
European Court of Human Rights Exhaustion of Domestic Remedies
A ”practice” of widespread linked breaches of Convention rights does not require exhaustion of remedies.
”A practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system […].”
”It is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice.”
European Court of Human Rights Six-month Rule
Article 35 (1)
”The Court may only deal with the matter […] within a period of six months from the date on which the final decision was taken.”
Allan v. United Kingdom, Case No. 48539/99 (28 August 2001):
”The running of the six month time-limit imposed by Article 35 (1) is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made. As regards complaints not included in the initial application, the running of the six month time-limit is not interrupted until the date when the complaints are first submitted to the Court.”
Walker v. United Kingdom, Case No. 34979/97 (25 January 2000):
It is ”recalled that that this rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainly itself.”
European Court of Human Rights Same-matter Rule
Article 35 (2) (b):
Applications are inadmissible which have ”already been submitted to another procedure of international investigation or settlement and contain no relevant new information.”
Smirnova v. Russia, Case No. 46133/99 (3 October 2002):
The applicant brought a case to both the ECtHR and the UN Human Rights Committee alleging violations of criminal procedure (unlawful arrest).
The ECtHR complaint had the additional factual statement that the applicant had been forced to surrender her identity documents to the district court.
Russia claimed the case was inadmissible based on Article 35 (2)
European Court of Human Rights Incompatible Claims
Article 35 (3):
”The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of Covention or Protocols thereto.”
Yonghong v. Portugal, Case No. 50887/99 (25 November 1999)
Ratione loci (territorial jurisdiction)
Portugal had never made an Art. 56 declaration extending the Convention to Macao.
Kozak v. Ukraine, Case No. 21291/02 (17 Decemer 2002)
Ratione temporis (temporal jurisdiction)
Ukraine was not a party to the ECHR when the applicants land title was confiscated.
Frette v. France, Case No. 36515/97 (June 2001)
Ratione materiae (subject matter jurisdiction)
The applicants claim of right of adoption is not contained in the ECHR.
European Court of Human Rights Jurisdiction
European Court of Human Rights Jurisdiction
European Court of Human Rights Abuse of the Right of Petition
Article 35 (3):
”The Court shall declare inadmissible any individual application submitted under Article 34 which it considers […] an abuse of the right of application.”
Duringer and others v. France, Case No. 61164/00 (4 February 2003):
”The applications of Mssrs Duringer and ’Forest Grunge’ were held inadmissible: those applicants had sent numerous communications containing serious accusations against judges of the Court and officials of the Registry and statements without any foundation which were extremely insulting and wild and repeatedly reiterated, and did not fall within the amibt of Article 34 […].”
”The intolerable conduct of Mr. Gerard Duringer and, assuming that he existed, ’Forest Grunge’ was contrary to the aim of the right of individual application […].”
Jian v. Romania, Case No. 46640/99 (30 March 2004):
The applicant forged documents material to his allegations of ill-treatment.
”This was a flagrant and aggravated abuse of the right of application.”
The case was declared inadmissible.
European Court of Human Rights Interim Measures
Article 34:
”The High Contracting Parties undertake not to hinder in any way the effective exercise of [the] right [of individual applications].”
Mamatkulov and Askarov v. Turkey, (4 February 2005):
The applicants were from Uzbekistan, which wanted them for alleged terrorist activities and attemted assassination of the President of that country.
They were arrested in Turkey and extradition ordered.
Both appealed to the ECtHR which issued a statement to Turkey under Rule 39 of the rules of the Court that the applications should not be extradited until the matter is dealt with by the Court.
The applicants claimed that they would be mistreated, not receive a fair trial in Uzbekistan, and potentially receive the death penalty.
Turkey extradited one week later.
During the progress of the case, Turkey notified the Court that the applicants had been sentenced to jail terms of 20 years and 11 years, that Turkey had visited them and they were in good health and without complaints, and that they were able to receive visitors.
European Court of Human Rights Standard of Review on the Merits
European Court of Human Rights Interpretation Method
European Court of Human Rights Margin of Appreciation
European Court of Human Rights Necessary in a Democracy
European Court of Human Rights Judgments are Binding
This presentation is the copyright of Richard Hustad.
All rights are reserved. There is no claim to any of the photographs, illustrations, or quotations—all of which are either in the public domain or are a fair use exception to copyright protection for educational purposes.
Except for the quotation of short passages for the purposes of criticsm and review, no part of this publication may be represented, reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the author.
Permission is expressly granted for educational or any other not-for-profit purpose as long as credit is attributed according to contemporary methods and the author is notified in writing. The author retains the right to revoke this grant at any time, retaining sole discretion to do so.
(This presentation has been created solely for educational purposes and reflects the research on and conceptualization of the topic by the author. The copyright claim is exerted primarily to prevent other lecturers from presenting it as their own work.)
