HUMR5140 Introduction to Human HUMR5140 Introduction to Human Rights LawRights Law

Autumn 2014Autumn 2014

Lecture 8:

Regional Human Rights Systems: Europe

This lectureThis lecture• Outline of the European human rights system• Focus on certain essential features: Margin of

appreciation, proportionality

Many different European regimes

The European Social Charter

EU’s Charter of Fundamental Rights

Other CoE treaties

OSCE

The European Convention on Human Rights

Mainly civil and political rights

Mainly civil and political rights

Some absolute rights, but

mainly relative rights

Some absolute rights, but

mainly relative rights

Positive and negative

obligations

Positive and negative

obligations

An impact of ESC rights

An impact of ESC rights

Integrated interpretation

Three threads in the creation and Three threads in the creation and development of the ECHRdevelopment of the ECHR

1. European integration not only a matter of technical needs and economic interests; the ECHR embodies a system of liberal values

2. The continuing concern for the protection of human rights

3. Human rights as a tool to spread democracy to Central and Eastern European states

A quick history: The original A quick history: The original control mechanisms – until control mechanisms – until

19981998A tripartite system

The European Commission on Human Rights

The European Court of

Human Rights

The Committee of Ministers

• Consider the admissibility of petitions• Establish the facts• Promote friendly settlements•Give opinions of violations

Give final and binding judgments in cases

referred to it

Give final and binding decisions in cases not referred to the Court

A judicial body A political body

The revised control The revised control mechanismsmechanisms

• Protocol No. 11, restructuring the control machinery, adopted on 11 May 1994, entry into force on 1 November 1998o A sidestep:

• Additional protocols: Do not amend the original text, but introduces additional rights. Do not require consensus; become binding for States that ratify

• Amending protocols: Amend the original text (“Since its entry into force on 1 November 1998, this Protocol forms an integral part of the Convention”). Require consensus, do not enter into force until all Contracting States have consented

Protocol no. 11Protocol no. 11

The European Commission on Human Rights

The European Court of

Human Rights

The Committee of Ministers

A tripartite system

• Now established as a permanent body

• Assumed (most of) the responsibilities of the Commission

• The competence of the Court became compulsory

• New, reduced role: To supervise compliance with decisions by the Court

Attempt at improvement: Protocol No. 14, entry into force 1 June 2010. Aims to guarantee the long-term efficiency of the Court by optimising the filtering and processing of applications•New judicial formations to deal with the simplest cases•A new admissibility criterion (“significant disadvantage”) •Judges’ terms of office to be extended to nine years without the possibility of re-election.

A dramatic increase in cases

A victim of its own success?

2010 2011

Applications received

Applications disposed of

Annual deficit

Backlog 31 December

61,300 64,500

41,183 52,188

20,100 12,300

139,650 151,600

More than 90 % of cases are declared

inadmissible

2010: 38,576

2011: 50,677

2010 2011

Applications received

Applications disposed of

Annual deficit

Backlog 31 December

61,300 64,500

41,183 52,188

20,100 12,300

139,650 151,600

More than 90 % of cases are declared

inadmissible

2010: 38,576

2011: 50,677

2012

128,100

+ 22,700

65,150

87,879

2012: 86,201

The life of an application

Admissibility

Substantive requirementsSubstantive

requirementsProcedural

requirementsProcedural

requirementsJurisdictionJurisdiction

Grand Chamber

Relinquishment

Relinquishment

Referral (appeal)Referral (appeal)

Fundamental Fundamental principles principles

of interpretationof interpretation

The European Court of Human Rights

The Vienna Convention on the

Law of Treaties

A strong principle of effectiveness

A clear evolutive interpretation

National courts

For national law to decide

A tendency to apply the same method as

the ECtHR

Challenge: The evolutive

interpretation

«No more, but certainly no less»

«No less, but certainly no more»

Pilot-judgment Pilot-judgment procedureprocedure

• Introduced in 2004 as a means of addressing systemic problems in Contracting States which result in multiple applications to the Court

• One (or a few) case is given priority treatment, while other applications are adjourned until the pilot case is decided

• Justification:1. Speedier redress for victims2. The systemic problem is redressed within the

national legal order under guidance from the Court3. A large number of repetitive cases may be

removed from the Court’s docket• Legal basis: Now «rule 61»

Examples of pilot-Examples of pilot-judgmentsjudgments

• Broniowski v. Poland (2004): Failure to compensate loss of propertyo See paras. 189-194: The pilot-judgment procedure explained

• Burdov v. Russia (2009): Failure to enforce domestic court decisions

• Rumpf v. Germany (2010): Length of proceedings

EnforcementEnforcement

Art. 46 Binding force

Binding force

Execution of judgments

Execution of judgments

«undertake to abide by the final judgment»

«undertake to abide by the final judgment»

Committee of MinistersCommittee of Ministers

Referral to Court

Referral to Court

Interpretation procedure

Interpretation procedure

Infringement procedure

Infringement procedure

Reform issuesReform issues

Interlaken BrightonIzmir

Protocol no. 15

Protocol no. 16

Let’s discuss…Let’s discuss…• …the margin of appreciation