Announcements

New extra credit opportunity.Question due in Section tomorrow.

ECHR, Rights Claims and the National Legal System

I. National Incorporation of the European Convention: the process

A. National institutional requirements 1. Article 1: obligation to respect HRs 2. Article 13: right to effective remedy 3. Flexibility in domestic

implementation

European Convention of 1950Article 2 Right to LifeArticle 3 Prohibition of TortureArticle 4 Prohibition of slaveryArticle 5 Right to liberty and securityArticle 6 Right to Fair TrialArticle 7 No punishment without lawArticle 8 Right to Respect for private lifeArticle 9 Freedom of thought, religionArticle 10 Freedom of expressionArticle 11 Freedom of assemblyArticle 12 Right to marryArticle 13 Right to an effective remedyArticle 14 Prohibition of discrimination

(I. National Incorporation, cont.)

B. Varying National Incorporation Patterns 1. Early and Late Early: a longer legacy of Convention in

national law (e.g. Austria, France, Netherlands)

Late: those that incorporate only recently despite being members for 30 years or more (e.g. UK, Denmark, Sweden)

(I. National Incorporation, B. Varying National Incorporation, cont.)

2. Why is there Variation? a. generally, monist countries

incorporated earlier (AUS, NET, SPA) b. dualist countries generally took

longer relying on nat’l implementing legislation (UK, SWE, FIN)

II. How Convention Rights are Protected in National Legal System A. Empowering the National Judiciary EXAMPLES:

FRA: Conseil d’Etat gave priority to an international treaty over a municipal lawITA: Court of Cassation recognizes direct applicability of ECHR case lawAUS/SWISS: use ECHR rulings as basis to expand national rights SPA: the ECHR assisted the development of constitutional law when it was a new democracy

(II. How Convention Rights Protected, cont.)

B. Creating Constitutional Rights in Domestic Law 1. Convention given Statutory Status:

UK: Human Rights Act 1998 provides a statutory bill of rights

GER: Const. Court upgraded Convention statutory status to stating Constitution must be read in light of the Convention

(II. How Convention Rights Protected, B. Creating Constitutional Rights, cont.)2. Convention given Constitutional

Status -Convention Rights are SupremeEXAMPLES: NET, AUS, BEL, CYP, CZ

III. Rights Litigation and the ECHR

A. ECHR Litigation over time

Country

1961-9 1970-9

1980-9 1990-7 Total

Austria 3 4 17 48 72

Belgium 3 5 21 20 49

Denmark

0 1 4 11 16

France 0 0 6 77 83

Germany

1 3 20 10 34

Ireland 3 0 3 4 10

Italy 0 0 17 130 147

Netherlnd

0 2 10 30 42

Norway 0 0 0 3 3

Sweden 0 2 13 22 37

UK 0 5 42 53 100

(III. Rights Litigation, cont.)

B. Protection of Right to a Fair Trial (Art 6)- 60% of cases between 1960-98 invoked

Art6EXAMPLES: 1. Length of Proceedings: Trippel v. Germany (2003) Cwyl v. Poland (2003) 2. Improper Action of National Courts

Popescu Nast v. Romania (2003)

(III. Rights Litigation, cont.)

C. Expansion of Convention RightsGoodwin v. UK (2002)Dispute: Goodwin claimed UK laws violated the Convention rights as applied to transexuals:-Art 14 (prohibition of discrimination)-Art 8 (right to private life)-Art 13 (right to effective remedy)-Art 12 (right to marry and to found a family)

(Goodwin Case, cont.)

Question: In your view, should this case be the subject of national or international law? Should this be the responsibility of the legislature or the courts? Why or why not?

ECHR Decision: UK law is in violation of Art 8 (private life) and Art 12 (to marry)

IV. Rights Litigation involving Convention Rights in the National Legal System

A. Balancing Conflicting Rights:EXAMPLE: Right to Privacy v. Right to

Freedom of Expression 1. Naomi Campbell v. the Mirror

(2002) Dispute: Campbell’s right to privacy

vs. the newspaper’s right to freedom of expression

(IV. Right Litigation involving Convention, A. Balancing, cont.)

2. Z.Jones/M.Douglas v. Hello! (2003)

Dispute: Jones/Douglas brought suit against Hello! on 13 counts, including violation of their right to privacy.

3. Cases led to the development of new UK national privacy law

(IV. Right Litigation involving Convention, cont.)

B. Problems with Varying Nat’l Implementation EXAMPLE Schröder v. Mail on Sunday/Maerkische

Oderzietung (2003) Dispute: The Chancellor’s right to privacy vs.

the newspapers’ right to freedom of expression

Decision: bans newspaper article in Germany only, not the same paper sold in the UK