JUR 5710 Institutions and Procedures

17 September 2008 Maria Lundberg, NCHR 1

JUR 5710Institutions and Procedures

Regional protection

Europe


Europe (1)

• Council of Europe • Statute of the Council of Europe

(London,1949)– 1949 – 10 member States– 2008 – 47 member States

• European Union (EU)• Treaty on Economic Union – the Maastricht Treaty 1992

– Origins: European Coal and Steel Community (the Treaty of Paris, 1952) and European Economic Community, European Atomic Energy Community (the Treaties of Paris, 1957)

– Six founding members (1957)– 27 member States (2008)– All member states also members of the Council of Europe


Europe (2)

• Organization for Security and Cooperation in Europe (OSCE) (Budapest, 1994)– 1973- a diplomatic conference in Helsinki,

Finland – the Conference on Security and Cooperation

in Europe (CSCE) –– 1975 - Final Act of the Helsinki Conference

signed by 35 Heads of State– 1994 - Budapest summit – creating the OSCE– 2008 – 56 member States


Statute of the Council of Europe London, 5.V.1949

• Preamble– Convinced that the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and

civilisation;

– Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy;

– Believing that, for the maintenance and further realisation of these ideals and in the interests of economic and social progress, there is a need of a closer unity between all like-minded countries of Europe;

– Considering that, to respond to this need and to the expressed aspirations of their peoples in this regard, it is necessary forthwith to create an organisation which will bring European States into closer association,

– Have in consequence decided to set up a Council of Europe consisting of a committee of representatives of governments and of a consultative assembly, and have for this purpose adopted the following Statute:

• Chapter I – Aim of the Council of Europe• Article 1• The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the

ideals and principles which are their common heritage and facilitating their economic and social progress.• This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and

common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.

• Participation in the Council of Europe shall not affect the collaboration of its members in the work of the United Nations and of other international organisations or unions to which they are parties.

• Matters relating to national defense do not fall within the scope of the Council of Europe.


Council of Europe

• The Secretary-General• The Committee of Ministers• The Parliamentary Assembly• The European Court of Human Rights (Art. 19 of

the ECHR)• The European Commission against racism and

Intolerance (Vienna Declaration of the Heads of State and Government of

the Member States of the Council of Europe, 1993)• The European Commissioner on Human Rights

(established 1999)


Treaties of the Council of Europe (1)

• The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (Rome, 1950)– As amended by Protocol 11(1998)

• Supplemented or amended by Protocols– Protocol 14 (2004) amending the control

system of the ECHR – not yet entered into force


Treaties of the Council of Europe (2)

1. European Social Charter (1961) (27 states)

2. European Social Charter Revised (1996) (24 states)

3. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987,amended in 2002) (47 states)

4. European Charter for Regional or Minority Languages (1992) (23 states)

5. Framework Convention for the Protection of National Minorities (1995) (39 states)

6. European Convention on the Exercise of Children's Rights (1996) (13 states)

7. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (1997) (22 states)


European Convention on the Protection of Human Rights…

• Rights: Articles 2-13– Articles 14, 15, 16, 18, 53, 57

• Protocols 1, 4, 6, 7, 12, 13

• Comparison with the International Bill of Rights


European Convention on the Protection of Human Rights…

• The European Court of Human Rights• Judges sit in individual capacity (Art. 21)• The ECHR is subsidiary to the domestic

protection of human rights. (Arts. 1, 35.1)• The jurisdiction of the ECHR includes (Art.

32-34, 46-47:– Inter-state cases – compulsory jurisdiction– Individual cases – compulsory jurisdiction– Advisory opinions – advisory jurisdiction


Individual cases

• Victim of a violation: person, NGO, group (Art. 34)– a victim is.– actually affected by the violation, – directly or indirectly (relatives etc)


Individual cases cont.

• Admissibility criteria (Art.35): • Exhaustion of local remedies,

– only effective remedies– not if no success can be foreseen

• 6 months from final decision• Anonymous• Substantially the same as under another

procedure• Manifestly ill-founded, or an abuse of right

of application


Inadmissibility

• Committee of 3 judges decides by consensus – final decision (Art. 28)

• if no agreement:

• Chamber of 7 judges (Art. 29)


Inter-state cases

• No link to a victim is necessary

• Any breach of the ECHR (Art.33)

• Admissibility (Art.35.1) : – exhaustion of local remedies and – no later than 6 months

• few cases in practice


Advisory opinions

• Advisory opinions (Arts. 47, 48)– Request of the Council of Ministers– Legal questions on the interpretation of

the Convention– Not on the content or scope of the rights in

Section I of the ECHR


Examination of cases

• The examination of case: (Art. 27)– Committee of 3 judges– Chamber of 7 judges– Grand Chamber of 17 judges

• Decision on merits: – Chamber of 7 judges (Art. 29)– Grand Chamber of 17 judges (Art.30, 31)


Grand Chamber

• Grand Chamber only in particular cases:

1. Referral by any party (Art.43)– within 3 months of judgment by the Chamber– panel of 5 judges decides if:

• i. serious questions of interpretation or application• ii. serious question of general importance

2. Relinquish by Chamber:– A serious question affecting the interpretation of the

ECHR, or – Inconsistency with earlier judgments (Art. 30)


Judgments of the Court

• Grand Chamber’s judgments become final (Art. 44)

• The Chambers’ judgments final if:– No referral– 3 months– When the panel of 5 judges rejects referral

• Judgments may include just satisfaction (Art. 41)• Judgments are binding upon the parties, (Art.

46.1)• The Committee of Ministers supervise the

execution of judgments (Art. 46.2)


Protocol 14 to the Convention

• Not yet entered into force

• A new revision of the procedures of the ECHR


European Union (1)

• Human rights within the EU

• Practice of the European Court of Justice

• Human rights as part of general principles of EC law

• Art. 6 and 7 of the EU Treaty

• Charter of Fundamental Rights (Nice, 2000)

• EU Constitution?


European Union (2)

• Art. 6 and 7 of the EU Treaty– Founded on principles of liberty, democracy,

respect for human rights and fundamental freedoms, and the rule of law (Art. 6.1)

– The Union shall respect fundamental rights,… as general principles of Community law (Art.6.2)

– Suspension of membership rights if ”a serious and persistent breach” of human rights (Art.7)


European Union (3)

• Charter of Fundamental Rights (Nice, 2000)– Wording– Larger catalogue– Broader categories– Restrictions – art. 52.1– Relation to the ECHR – art. 52.3– Level of protection – art. 53

• Developments in the new EU Constitution?


Organisation for Security and Cooperation in Europe (OSCE)CSCE: Final Act of the Helsinki

Conference(1975)

Concluding documents in the ”human dimension” of the CSCE

Vienna and Paris (1989)

Copenhagen (1990)

Moscow (1991)

Geneva (1992)


Organisation for Security and Cooperation in Europe (OSCE)

• The Office of Democratic Institutions and Human Rights (1990)(Warsaw)

• The High Commissioner on National Minorities(1992) (the Hague)

• The Representative on Freedom of the Media (1997)(Vienna)

JUR 5710 Institutions and Procedures

Documents

Transcript of JUR 5710 Institutions and Procedures