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149 Seiten, Note: Befriedigend
Table of cases
List of abbreviations
I. Introduction: the case of RTBF
I. The significance of Universal Human Rights Law
II. Human Rights Law on appropriate scales
A. International perspective of Fundamental Rights
1. An international mechanism
a. International Organizations and International Law
aa. Excursus: Conditions according to the principles of Law: IGO’s and States
2. The United Nations
a. The Charter of the United Nations
aa. The purposes and principles of the Charter
b. Registered and commissioned institutions of the United Nations
c. The Universal Declaration of Human Rights Law
aa. General perspectives
bb. The Fundamental Freedoms and Human Rights of the Declaration
B. The European perspective of Human Rights Law
1. The European Union
a. Motives regarding the founding of the European Communities
aa. Excursus: The terms ‘European Communities‘ and ‘European Union‘
b. The legal impact of the European Community on Fundamental Rights
aa. The case of the ‘Internationale Handelsgesellschaft von Einfuhr-Vorratsstelle
Getreide und Futtermittel‘
bb. The ‘Solange I Beschluss’ of the Federal Constitutional Court of Germany
cc. The revision of the ‘Solange I Beschluss’ through the ‘Solange II Beschluss‘
dd. Remarks referred to the ‘Solange Beschlüsse‘
c. The Constitutional Law of the European Union
d. Treaties and the impact on human rights
e. The Bill of Rights
C. The European Convention on Human Rights and Fundamental Freedoms
1. The first significant measures towards an appropriate implementation of
Human Rights Law
2. The ‘Strasbourg machinery’
a. Excursus: The European Commission of Human Rights
3. The specific Convention Rights
a. The nature of the Convention rights
b. Interferences with fundamental rights
c. Jurisprudence, qualified rights and the margin of appreciation
d. A continuing revolution through the implementation of protocols
D. General aspects
1. Treaties as an instrument of Law
a. The ECHR as an international source of law
2. The international position of the ECHR
a. The ECHR and domestic law
Bertrand M., Warner D., A New Charter for Worldwide Organization? (1995)
Collected Edition of the ‘ Travaux Pr é paratoires ’ of the European Convention on Human Rights Vol. I: Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly, II May-8 September 1949
Collected Edition of the “ Travaux Pr é paratoires ” of the European Convention on Human Rights, Volume IV, The Hague, (1977)
Cook R.J., Human Rights of Women - National and International Perspectives (1994) Council of Europe, Collected Texts ( 1994)
De Salvia M.,Villinger M. E., The birth of European Human Rights Law (1998)
Di Frederico G., The EU Charter of Fundamental RIghts: From Declaration to Binding Instrument (2009)
Emmerson B., Ashworth A.,Macdonald A., Human Rights and Criminal Justice (2012) Ganten T.O., Die Drittwirkung der Grundfreiheiten (2000)
Gomien D., Short guide to the European Convention on Human Rights (2005)
Greer S., The European Convention on human Rights: Achievements and Prospects (2006)
Grabenwarter C./Pabel K., Europäische Menschenrechtskonvention: Ein Studienbuch (2012) Foster Nigel, EU Law - Directions (2010)
Freeman M.A., Rudolf B., Chinkin C., The UN Convention On The Elimination of All Forms of Discrimination Against Women (2012)
Frenz W., Handbuch Europarecht, Band 5: Wirkungen und Rechtsschutz (2010)
Jacobs F.G., White R., Ovey C., The European Convention on Human Rights (2010) Janis M., Kay R., Bradley A., European Human Rights Law (2008) Jayawickrama N., The Judicial Application of Human Rights Law (2002)
Johnson M. G./Symonides J., The Universal Declaration of Human Rights: A history of its creations and implementation 1948 - 1998 (1998)
Jordan R.S., International Organizations: A Comparative Approach to the Management of Cooperation (2001)
Kesselman et al., European Politics in Transition (2005) Kleinsorge Tanja E.J., Council of Europe (2010)
Kicker R., The Council of Europe: Pioneer and Guarantor for Human Rights and Democracy (2010)
Leach P., Taking a Case to the European Court of Human Rights (2011)
Legg A., The Margin of Appreciation in International Human Rights Law, Deference and Proportionality (2012)
Letsas G., A theory of Interpretation of the European Convention on Human Rights (2007)
Lipgens W., Loth W., Documents on the History of European Integration, Volume 3 ‘ The struggle for European Union by political Parties and Pressure Groups in Western Countries 1945 - 1950 Loveland I., Constitutional Law, Administrative Law and Human Rights: A critical introduction (2012)
Macdonald R.St.J., Matscher F., Petzold H., The European System for the Protection of Human Rights. (1993)
Nijhoff M., Council of Europe: Collected Edition of the “ travaux Pr é paratoires ” of the European Convention on Human Rights Volume VI (1985)
Peterson M. J., The United Nations General Assembly (2006)
Robertson A., Council of Europe - Collected edition of the “ travaux pr é paratoires ” of the ECHR, (The Hague: Nijhoff M. (1975)
Roca J.G., Santolaya P., Europe of Rights: A compendium on the European Convention of Human Rights (2008)
Smith R.K.M., Van den Anker C., The essentials of human rights (2005)
Slomanson W.R., Fundamental Perspectives on International Law (2011)
The United Nations Department of Public Information, The United Nations and Human Rights 1945 - 1995, Volume VII (1995)
The United Nations, Basic facts about the United Nations (2004)
Van Dijk P./Van Hoof G.J.H., Theory and Practice of the European Convention on Human Rights (1998)
Journals and Reports
Gray C., European Convention on Human Rights - Freedom of Expression and the Thalidomide Case, The Cambridge Law Journal, Volume 38 (1979)
Helfer L.R., Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, Vol. 19/1, 125-129, The European Journal of International Law (2008)
Hilson C., Global Constitutionalism - The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action, Cambridge Law Journal, Volume 2 (2013)
Madhavi S., Piercing the Veil, Yale Law Journal, Volume 112 (2003)
Sakyrakis S., Proportionality: An Assault on Human Rights?, Jean Monnet Working Paper 09/08 (2012)
Spencer J.R., Extradition, the European Arrest Warrant and Human Rights, The Cambridge Law Journal, Volume 72 (2013)
Reports of Judgments of the International Court of Justice in the Case of Democratic Republic of the Congo v. Uganda, 19.12.2005
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp http://echr.coe.int/Documents/Courts_advisory_jurisdiction_ENG.pdf http://www.echr.coe.int/Documents/Stats_analysis_2012_ENG.pdf
http://www.echr.coe.int/Pages/home.aspx?p=basictexts&c=#n13739063294958599503665_pointer http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp NT=213&CM=8&DF=15/12/2013&CL=ENG
h t t p : / / h u b . c o e . i n t / w e b / c o e - p o r t a l / e u r o p e a n - u n i o n ? dynLink=true&fromArticleId=&dlgroupId=10226&layoutId=772
http://www.theguardian.com/world/2013/jul/30/abortion-ireland-becomes-legal-circumstances http://www.theguardian.com/law/2012/apr/19/european-court-of-human-rights-human-rights http://www.un.org/en/documents/charter/
European Court of Human Rights
A,B,C v. Ireland, judgment of 16.12.2010 Airey v. Ireland, judgment of 09.10.1979
Al-Skeini and others v. The United Kingdom, judgment of 07.07.2011 Aktivar and others v. Turkey, judgment of 16.09.1996
Bankovic and others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, judgment of 12.12.2001
Buckley v. the United Kingdom, judgment of 25.09.1996
Chassagnou and Others v. France, judgment of 29.04.1999
Christine Goodwin v. the United Kingdom, judgment of 11.07.2002 Cossey v. the United Kingdom, judgment of 27.09.1990 Cypress v. Turkey, judgment of 10.05.2001
Dudgeon v. the United Kingdom, judgment of 22.10.1981
Earl and Countess Spencer v. United Kingdom, judgment of 16.01.1998 Engel and others v. the Netherlands, judgment of 08.06.1976 Eremia v. the Republic of Moldova, judgment of 28.05.2013 Evans v. the United KIngdom, judgment of 10.04.2007 Handyside v. The United Kingdom, judgment of 07.12.1976 Hatton and others v. the United Kingdom, judgment of 08.07.2003 Hirst v. the United Kingdom, judgment of 06.10.2005 I.G. v. Moldova, judgment of 15.05.2012
Ireland v. the United Kingdom, judgment of 18.01.1978 Loizidou v. Turkey, judgment of 18.12.1996 Malone v. the United Kingdom, judgment of 02.08.1984 Marckx v. Belgium, judgment of 13.06.1979 M.C. v. Bulgaria, judgment of 04.12.2003
Observer&Guardian v. the United Kingdom, judgment of 26.11.1991
Olsson v. Sweden, judgment of 24.03.1988
Prokopovich v. Russia, judgment of 18.11.2004
Rees v. The United Kingdom, judgment of 17.10.1986 RTBF v. Belgium, judgment of 29.3.2011
Sheffield and Horsham v. the United Kingdom, judgment of 30.07.1998 Soering v. the United Kingdom, judgment of 07.07.1989 Sunday Times v. the United Kingdom, judgment of 26.04.1979 Tyrer v. the United Kingdom, judgment of 25.04.1978 Tysiac v. Poland,judgment of 20.03.2007 Valieliené v. Lithuania, judgment of 26.03.2013 Vo v. France, judgment of 08.07.2004 X v. United Kingdom, judgment of 05.11.1981
European Court of Justice
Case 26-62, judgment of 05.02.1963 Case 11-70, judgment of 17.12.1970 Case 43-75, judgment of 08.04.1976
International Court of Justice
Case concerning United States diplomatic and consular staff in Tehran, judgment of 24.05.1980 Filartiga v. Pena-Irala, judgment of 06.06.1980
Nottebohm Case, judgment of 06.04.1955
South-West Africa Cases, judgment of 18.07.1966
BVerfGE 37, 271 (Solange I), 29.05.1974 BVerfGE 73, 339 (Solange II), 22.10.1986
Abbildung in dieser Leseprobe nicht enthalten
December 1948 is a remarkable date in the history of human rights law. It was the birth of Human Rights Law. Without exception, human rights belong to every single human being. The eighth secretary General Ban Ki-moon clearly found an adequate description to illustrate the significance of human rights while giving a speech at the 2011 Human Rights Day. Besides the significance of their existence he focused on their constant development and practicable usage which requires all the nations to exercise human rights. His speech can be put in one significant sentence. “But unless we know them, unless we demand they be respected, and unless we defend our right -- and the right of others -- to exercise them, they will be just words in a decades-old document.”1 So this led to a few questions:
Now, as we happen to have Human Rights Law in Europe what are the consequences regarding the jurisprudence and the legal practice in general? Further on, what are the judicial consequences in respect of violence against women?
How about the acquaintance within European courts especially the European Court of Human Rights Law? Did it remain the same or are remarkable changes and developments observable?
Did the development in Europe force ‘us’ to accommodate the understanding and meaning of what was once essential but in a completely different way?
The main focus within this work basis on the case-law of the ECtHR in order to reveal the process, development, changes and reasonings of the Court, specifically in respect of the application of the principles of interpretation. The case analyze will cover general state of affairs, e.g.: environmental issues, gender based circumstances, press related matters, physical and psychological violence in general, etc. Moreover, regarding violence, a few cases in Section Five shall illustrate the judicial approach relating to violence against women in specific; especially, since the latest violent incidents in 2013, for example in India South-America but also in Eastern Europe, revealed that violence against women is a disastrous, unsolved and widespread matter.
As mentioned in the preface, the main purpose of this thesis is to analyze how the ECtHR works, judges and which difficulties might appear. In order to understand the judgments and the legal machinery in Strasbourg, I want to start with a case; the RTBF-case. For example, one of the leading questions is, how did Human Rights Law affect the national and international jurisdiction? It becomes clear by the following example ; the national courts have to consider the principles and fundamental rights, which are provided by the ECHR. On the one hand, the ECtHR investigates if the acts of the national authorities are in accordance with those principles, and, on the other hand, it examines if any interference with the fundamental rights, as we experienced in the first case, could be justifiable or not. To sum up, the ECtHR analyzes if a national judgment is legitimate or not in respect of human rights law. Of course, the ECtHR had to find its way to offer well considered judgments regarding the arguments and methods; consequently, I like to offer an insight by revealing the work in form of analyzing specific chosen cases.
We habitually consume information on a daily basis. Newspapers, television, internet, radio and other knowledge intercessional media offer all sorts of information. However, it forces the question if there are any boundaries within sharing and publishing information. To be more specific, the question is whether there should be set a boundary to restrict and control individuals, companies and groups of individuals or not. For example, in one case the European Court decided on an application from the RTBF in which the public broadcasting company of the French Community in Belgium alleged a violation of the freedom of expression1. As to the facts: the company broadcasts a program which is dealing with judicial matters. Part of their reveals contained concerns regarding medical risks and similar topics. Therefore they brought up an example. The company showed complaints by patients about their treatment and doctors. It should be noted that these issues have been reported before within the newspapers (printed media). The accused doctor submitted the case to the Court. After this reaction the responsible judge granted an interim injunction, preventing the company from broadcasting this program, until a decision has been made on the merits. Decisions have not been made by the time the case had been lodged with the European Court. The focus was laid on the interim injunction. First, RTBF alleged to be violated in their right of access to a Court by exhibiting Article 6 of the Convention. The Court of Cassation did not consider the fact that the claimant did bring up the possible violation of Article 10 of the Convention. The legal basis needed to be questioned, because the constitution of Belgium authorizes the punishment of offending medial behavior in practicing the freedom of expression. But the main point is that it is only punished after it has been committed. Hence, the Court tried to figure out whether there is a clear, specific and certain legal base within the Civil Code or not. Such an intervention cannot suffer from a leaking judicial base, because it would mean that the conviction is an act of preventive judicial activism which obviously would not stand any further investigation. The Court found that the company was unable to foresee the consequences, because it simply was not clear enough.2 For example there has not been any case- law by that time, so how should RTBF possibly know the precise regulation of the law? This leads to the conclusion that it simply is preventive. This conviction probably would keep many people in a safe position, just because they are aware of criticism in the media. Well, we could say that the content deals with an announcement to clarify the judicial handling in advance. But can this be the judicial acquaintance with such matters? During the further procedure the Belgian judge declared that there is a difference between print media and non print media. This unreasonable distinction has been implied by not investigating print media provider, which revealed such problematic matters several times before but judging non print media in the same field of disclosures. The Court analyzed the handling and found that there is no such legal framework, which offers the requiring base to distinguish between the two media sectors. In conclusion the Court found the Belgian State guilty for prohibiting in such a way without legal base or specific terms in the case-law by violating Article 10 of the Convention. They did not find any judicial prove for allowing such a kind of censorship. And to mention again, it seemed to involve a prior prohibition. The Constitution, combined with the Civil Code, does not offer the required fundamentals to legitimate the judgement. Therefore it is not possible for any individual to evaluate whether the content of their work is ‘legally covered’ or not. Hence, the Court revealed a violation of Article 6 ECHR as well.3
Before I start with the analyzes of the case-law of the ECtHR, it is unavoidable to have an overview regarding Human Rights Law in general, important organizations and institutions as well as significant mechanisms within the international and european sphere. Therefore, I will begin with an introduction to the functioning and impact of International Organizations, the United Nations and the European Union.
There is not a particular event or a single date to enumerate. It took its time to establish Human Rights. Therefore to mention one of the more important and obvious events which influenced the European movement drastically. For example, the United Nations General Assembly, now including 193 members, held its first session in 1946.4 In 1948 the Universal Declaration of Human Rights (Res 217 A III) entered into force.5 The competence is widespread in consideration of ‘ratione materiae’. Its practical purpose is to define recommendations and initiate field studies in reference to Human Rights questions. More specifically spoken, the Charter contains political, social, civil as well as economic and cultural rights. The legislative structure, work and progress stretches itself throughout the decades. The main matter is allegorized through legally non-binding statements, manifested in Article 10 and 13 of the Charter of the United Nations where it says ‘...and assisting in the realization of human rights and fundamental freedoms...’.6
Resolutions are not enforceable by law, which logically leads to the questionable fact that some rights are well accepted and some vary depending on the concrete legal system of the Member State. The limitation caused by national politics and legal structure is quite delicate. Regarding the implementation of international Covenants it is precarious. De jure the essential function needs to be seen in the advisory and monitoring role of the UN. For example, during Gulf war II and III, the Security Council of the United Nations ‘legislated’ Resolution 660. This resolution basically condemned the invasions of the Iraq and announced immediate withdrawal, combined with undertaking international negotiation.7 To put it into one phrase, the Council tried to build international peace and security. It could be spoken of an international mediator who claims communication, emphasis on peace keeping work and the practice of Human Rights law.
Human Rights do concern all of mankind, therefore, they are best protected on an international scale. As the main focus of this thesis is the ECHR, the detailed abstract concept of the international Law is shortened. A significant number of International Organizations grew within the last decades, not only IGO’s, but also the amount of NGO’s fluctuated surprisingly after
World War II, the later break down of the Soviet Union and the end of the Cold War. The influence was enormously triggered by uncertainty, the experience of War, deprivation, depression, misery.
On the ground that both, International Organizations and States, are mentioned in this thesis, I want to offer a short insight regarding the legal status and differences of the two of them, hence a better understanding of their legal acts is guaranteed.
International Law constitutes International Organizations as independent actors whilst States could be named as their founding-fathers at the same moment as being their members. Independence has to be understood in the sense of being constituted as a corporate person comparable with national commercial law. This leads to the fact that IGO’s can allege violations, but also can be accused of violating any law, furthermore, they have a legal basis, which means that IGO’s do have to comply with the rights, are addressees of obligations, but also of specific rights. To put this into one sentence ‘Inter-State organizations are legally independent to their founders. Some of this independence is written into the treaties that establish them, and some of it arises by implication.’8 Regarding independence, the Courts are constituted on this thought, meaning their power to judge as well as the argumentation leading to the judgments has to be seen separate from the Member
States and from the individuals. The founders of International Organizations simultaneously can act as their members. This fact is of great significance regarding profound political and economic interests. Additionally, a State can easily refuse a Membership of an IGO, due to its sovereignty. If a State does refuse the Membership, the international Law, which is set by the IGO, is not binding. Firstly States can refuse a Membership en bloc, secondly States can consent to be a member of an IGO with reservations. The latter leads to the effect that specific conditions stipulated are legally non-binding. International Law rests on a consensus, so it could be said that it is coordinating the international relations and guarantees a harmonic functioning. None the less, because of the absence of a supreme authority within international law, the distinction between national law and international law has its impact; consequently specific parts and legal acts of the international law are quite often classified as soft law, which is highly controversial by the reason that a sharp distinction has to be made on the ground that not the entire acts are soft law in this sense.9
The United Nations, for example, is a generally accepted International Organization with the legitimation of acting in legal matters. If both, States and International Organizations, are in charge of establishing legal basis - are they the same? The Charter of the UN manifests their ability to set recommendations but a recommendation certainly is not the same as a national binding law. So, it is not a legislation in terms of our national thoughts of legislation. The UN is allowed to provide protection and intervention in cases they have the given power from the specific State which means the UN is not allowed to launch a strike without permission. It is an existing enforcement power and a constricted area of acting in terms of an intervention. Again it reveals the slightly hidden difference between States and International Organizations. Moreover, States do not need to be founded. If the international accepted criteria - State territory, State authority and citizenship - are fulfilled the consequence are e.g. unquestionable powers in legal matters. In contrast to that, International Organizations need to be founded by States; logically they lack from those three mentioned criteria above. The most effective impact is the legal issue as States have unquestionable powers regarding their territory and their citizens. International Organizations, on the contrary, have the power the members and founders assign them. That means the power is a derivative transferred power. But another distinction has to be made regarding supranational and the intergovernmental acting. Due to the fact that treaties are the most common instrument in order to achieve the targeted anticipations it is necessary to distinguish the impact of a treaty. The European Union, as an outcome of the former European Community, is endowed with supranational power, in fact, they are constituted by international treaties but they are still an agreement between sovereign States. The primary law manifests a kind of constitution due to the provision of a certain level of law and democratic tools and therefore it is far more reaching and affecting. A legal act yields immediate effect to its addresses. If specific legal acts are neglected or ignored by the members this simply leads to sanctions e.g. penalties, law-suits, indemnity claims. On the other hand, the intergovernmental treaties, e.g. the treaties of the UN, do not state any kind of constitutional basis but set binding rules for the peaceful functioning of the humankind in sense of a political, social, governmental, legal and economical matter. In contrary to the European Union, the UN is not allowed to question the power of the contracting States and as a result of the sovereignty it can release recommendations but no legally binding sanctions. This reveals that treaties have different impact although, both are released by International Organizations. To put this into one phrase: States are the founding-fathers of institutions and institutions among each other distinguish themselves through the different kind of power given by States.10
The United Nations as the follower of the League of Nations, currently has 193 Members and 2 permanent observing States.1112 Established in 1945, when 50 countries met at the UN conference to draw up the Charter of the UN. As mentioned before, after 1945 it became clear that human rights needed to find a fixed and solid base. Human rights can resist cases of extremities only if they are implemented in legally binding structures.
Boutros Boutros Ghali, former United Nations Secretary-General, put it that way when giving a speech at the World Conference on Human Rights in Vienna in 1993 ‘When sovereignty becomes the ultimate argument put forward by authoritarian regimes to support their undermining of the rights and freedoms of men, women and children, such sovereignty- and I state this as a sober truth - is already condemned by history.’13
The Charter regulates the relations between the Member States in certain fields; handling issues with specific chosen instruments. At the time of founding the Charter after World War II, the main goal was to guarantee equality, safety and security to act preventive against any riots which could possibly lead to a war like situation. As the preamble of the Charter already manifested ‘We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental rights, in the dignity and worth of the human being, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedoms,...’.14
Adopted by the General Assembly in 194815, it represents the first globally developed document of fundamental rights by which the entire humankind inherently is legally covered. It has been described as a constituting device, pointing out the set obligations amongst the members and the UN agreed rights regarding legal instruments, sanctions and recommendations, jointly chosen aims in terms of e.g. social, environmental, educational, humanitarian, economical and legal matters. Furthermore, the Charter contains the principles of international interaction intent on the sovereignty of each State, therefore obviously coping with the idea of equality and the fact that the UN is not setting any violating actions, as long as they are against the intent aims.16
The purposes and fundamental issues of the Charter can be split into the following groups:
The Charter organizes the cooperation in problematic situations between States regarding humanitarian, economic, social and fundamental rights matters.
In addition, the Charter has the purpose to offer an adequate mediation in situations of conflicts; further on, the organs act as a harmonizer of actions between the Nations.17
An other purpose of the Charter is to be a developer for international relations in the sense of promoting equality.
Besides that, the UN functions as a ‘Human Rights Watch’ and as a peacekeeper.18
Fundamental principles due to the Charter, for example, do contain amongst others:
The work of the UN has to be based on the principle of equality and sovereignty of each individual Member. On the other hand, the Members are obliged to set their behavior according to the principles of the Charter. If international disputes are coming up, they have to be solved by peaceful acting and intention in fact to endanger global peace. The acquired actions should be based on global justice, security and faith and besides, the Members are requested to assist the UN to guarantee the promoted rights. As a result of sovereignty and the lacking supranationality of the UN, it is not permitted to undermine a States position. Furthermore, the Charter itself does not establish any kind of authorization whereupon the UN is allowed to set a intervention as long as it concerns the national jurisdiction of a State.19
The Charter is separated into 19 Chapters. Chapter I and II regulate the Membership and the Purposes and Principles of the UN. Chapter III to IV concentrate on the Organs of the UN.
Chapter V describes the requirements of the Security Council. Chapter VI to XIII manifests specific obligations like the determination of disputes, actions with respect to threats to the peace, breaches of the peace and acts of aggression. Furthermore, the Security Council shall define and set up the required settlements. But also act regarding regional arrangements. As stability and well- being are essential goods to guarantee peace International economic and social co-operation shall be stimulated. Economic, health, cultural, environmental, educational problems shall be investigated and solutions shall be implemented. Higher standards of living, full employment, social progress and the conditions shall be promoted as Chapter IX and X proclaim. Chapter XI to XIII reveal the trusteeship system and the Council which is in charge. In Chapter XIV the International Court of Justice finds its legal basis. Chapter XV reveals the duties of the Secretariat. Chapter XVI focus on the ratification and signature, transnational security arrangements, amendments and provisions.
According to Article 7 of the Charter, the UN is obligatorily composed of six organs. The General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the Secretariat. If it is to be found necessary, subsidiary organs can be established, as long as it does not undermine the rules and principles of the present Charter.20
The first draft fragmented the Charter of the UN into three parts: The Declaration, A Covenant on human rights and measures regarding the implementation. Adopted in 1948, it entered into force as a Declaration which leads to the effect that it is not binding but through the decades it appeared to approach almost the same effect as legally binding instruments because it impacted constitutions and the development of civil society regarding the knowledge about human rights and their importance. Several national constitutions reference to the UDHR or they omit a reference and contain parts of the UDHR directly in their constitutions. Although it is not legally binding, it defines and describes issues which are manifested in the UN Charter and therefore binding for the members. It sought to guarantee the general provisions of the UN and, furthermore, achieve the needed courtesy to become common standard. As result the UDHR is mediate legally binding. John P. Humphrey classifies the UDHR as an instrument to achieve an authentic interpretation of the United Nations Charter. Mostly based on the Namibia Case where the ICJ clarified ‘...restrictions, and limitations exclusively based on grounds of race, color, descent, or national or ethnic origin which constitute a denial of fundamental human right is a flagrant violation of the purposes and the principles of the Charter.’21
Other methods of interpretation are thinkable e.g. the UDHR provides the utilized instruments in order to undertake an UN conform interpretation if it comes to issues which were left undefined within the Charter, furthermore, the UDHR. The UDHR did not only affect national constitutions and the work of the UN but also the ICJ referenced the UDHR within its judicial decisions.22
As mentioned before, the Namibia-case, the South West Africa-cases 23 , where the responsible judge clarified that although the UDHR is legally non-binding it constitutes defaults of the interpretation and therefore leads to be customary law , within the Nottebohm-case it has been referred to Article 15 (1) where it says that everybody has the right of nationality and because of the immediate referring it could be seen as a basic principle.24 The Teheran Hostages-case dealt with a human rights violation because of wrongful behavior in terms of depriving human beings from freedoms and subjugate them to physical and psychological restraint. This treatment of the government was seen as an immediate violation of the principles of the Charter as well as of the UDHR and its basic principles and fundamental rights and freedoms.25
The Filartiga v. Pena-Irala Case decided that torture is now officially prohibited by the law of Nations . The Court did not only refer to the Charter but also noted that the prohibition of such inhuman and cruel acts is guaranteed through other particular treaties and States verify the prohibition by their national constitutions.26
The Declaration contents e.g. the following fundamental freedoms and human rights:
Article 3 contains the right to life, liberty and security of persons. The freedom of slavery or servitude is guaranteed within Article 4. Article 5 prohibits torture, cruel or degrading treatment or punishment. The right to equality before the law and equal protection before the law is ensured through Article 6 of the Declaration, further, Article 10 requires a fair trial and hearing if it comes to accusations in form of any criminal charges against an individual. Article 12 forbids any arbitrary interferences regarding a person’s privacy, home or family as well as correspondence. The right to seek and to enjoy asylum is guaranteed within Article 14. Trough Article 18 the right to freedom of thought, conscience and religion is ensured. Furthermore, the Declaration requires the right to a social and international order in which the rights and freedoms recognized in the declaration can be fully realized. Article 29 orders that ‘the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’27
Europe was ruled by anger, fear, poverty and, therefore, suspiciousness. As the Nazi-regime demonstrated legal structure can be undermined. Facilitation of democratic stability in Europe should be reached by establishing a wide-spread legal mandatory work.28 ‘The first alternative was to try to create Europe by means of a more or less intricate and complicated system of agreements and conventions. These could be given some cohesion by a kind of overall pact, defining general aims and attempting to harmonize them in detail. The second alternative was to create an organized Europe with a structure similar to that of a state with mandatory powers, leading eventually to a confederation or, better, a federation of Europe.’29 Economic, social and political cooperation was crucial in order to establish a specific commonality amongst the states, hence the permanent competition which was a major factor in many outbreaks of wars. The European Communities, as well as the UN and the Council of Europe, were established based on the thought of cooperation and integration.30
It needs to be mentioned that these two terms strictly have to be distinguished in order to avoid misunderstandings. The establishment of the Maastricht Treaty, also known as the Treaty on the European Union brought in the term ‘European Union‘.31 The Maastricht Treaty describes the fields of cooperation, the extension by the Members, additional policies, etc. Only when the Treaty of Lisbon entered into force in 2009, it became definite that the European Union is known exactly as Union. This fact was not always evident, based on the ground that the origin of the Union was considered as different. The Treaty on the European Union established three original communities; the European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community. These three were brought together under the ‘pillar‘, and consequently,
the Treaty was renamed as the European Community Treaty. By the Treaty of Lisbon the ‘pillar structure’ was broken up and it replaced the term ‘Community’ by the term ‘Union’, which now only refers to the European Union.32
The urgent need of the protection of fundamental rights became distinct and visible when the development of the European Community brought up new effects regarding the dimensions of their operating system. The European Community not only manifests international law, but also constitutional law for the contracting States. The consequence of the legal power of the European Community has to be considered as an enormous impact for the individuals of the Member States. Confirmed by the ECJ, this led to a new legal order, regulating the Member States as well as individuals.33 The problematic of the newly established legal order, the impact on the European Courts as well as the judicial solutions regarding these matters can be best demonstrated by the following cases.
Before the Solange I Beschluss of Germany, the ECJ addressed fundamental rights as a general principle of law, which led to a protection through the European jurisdiction, when the ECJ had to render the judgment of Internationale Handelsgesellschaft von Einfuhr-Vorratsstelle Getreide und Futtermittel.34 Therefore, it is important to illustrate the main arguments of the Court and the effect of the decision.
As to the facts, regarding subparagraph three of Article 12 (1) of the Regulation No 120/67/EEC of the Council on harmonizing the market in cereals the withdrawal of a license was conditional on bailing a deposit. The license was determined on the lodging of a certain deposit. The said Regulation No 120/6735, the system of deposits should guarantee a comprehensive understanding in terms of controlling of the market trends. Furthermore, Article 9 of the Regulation No 473/6736 only grants a forfeiture of the deposit - regarding a ceased full utilization of the license - in case of ‘force majeure’. The claimant questioned the validity of the regulation of deposits. Due to these facts two questions in specific arose to the Court, first is it legal - regarding fundamental rights - to exclude a forfeiture in general although Germany implemented the Regulation and second - the exclusion - if it is not entirely effected during a valid export license? Certainly only in case of no provable fault of the person concerned.37
The Handelsgesellschaft did not exhaust the entire amount during the time of being in custody of the valid license neither because of any ‘force majeure’ nor any appreciably self-caused circumstances. The claimant alleged a violation of his fundamental national rights because of the exclusion of the forfeiture in first place. Second, the deposit more specific its amount is excessive compared to the trade margins. It could be said that the entire system of the deposit is questioned. But is a fundamental right legally binding for the judgments if it concerns the European sphere? Summarized it had to be clarified if fundamental rights, in specific the proportionality, are basis of the judgments and if so, how did the Court argue. These questions emanated from the investigation of the two policies questioned by the Verwaltungsgericht Frankfurt am Main. The system of the deposits is not to be doubted because, otherwise, the commercial intercourse would suffer from a precise control; this is indispensable for an intact import and export. The Member States and the Community need to have entire knowledge to guarantee the function of the intercourse. To cite the Courts argumentation. ‘[...]is essential to enable the competent authorities to make judicious use of the instruments of intervention, both ordinary and exceptional, which are at their disposal for guaranteeing the functioning of the system of prices instituted by the regulation, such as purchasing, storing and distributing, fixing denaturing premiums and export refunds, applying protective measures and choosing measures intended to avoid deflections of trade.’38 The fact that the system of deposit could be excessive has definitely to be questioned because the burden the traders have to face simply are an unavoidable consequence of such a regulation compared to the protected general interests. Regarding the argumentation of ‘force majeure’ cases, the Court declared it not disproportionate since the communality of traders receive adequate protection through this provision. More likely, it has to reflect that ‘force majeure’ cases are limited to unusual circumstances sourced outside any possibility of controlling. Like the Court announced, ‘Beyond such occurrences, for which they cannot be held responsible, importers and exporters are obliged to comply with the provisions of the agricultural regulations and may not substitute for them considerations based upon their own interests.’39 Obviously, the Court interpreted the regulation in a certain way, which led to the fact that exceptions are strictly forbidden; otherwise the sense of the regulation would cease to exist, because the communality and not the individual interest should find protection. Another passage, where this stringent argumentation could be found, is the following; ‘It therefore appears that by limiting the cancellation of the undertaking to export and the release of the deposit to cases of force majeure the Community legislature adopted a provision which, without imposing an undue burden on importers or exporters, is appropriate for ensuring the normal functioning of the organization of the market [...] ‘.40
Clearly, it denies the violation of any rights within their argumentation, but besides that the solid base for that issue has been established through that judgment. ‘The system of deposits, as it is instituted by the provisions criticized, is contrary to the principle of proportionality which forms part of the general principles of law, recognition of which is essential in the framework of any structure based on respect for the law.’41 Due to the implementation of the principle of proportionality as a fundamental right the described situation would reveal a violation of fundamental rights because they have to be considered while rendering judgments. The fundamental principles of national systems form a kind of legal basis, for instance the respect of individuals but at that stage of development the ECJ obviously manifested that the main point of view is a European one. This means that the Court has to assess and evaluate the specific circumstances of a case through ‘European eyes’ and not solely through arguing with national, constitutional or not, principles. ‘Although Community regulations are not German national laws, but legal rules pertaining to the Community, they must respect the elementary, fundamental rights guaranteed by the German Constitution and the essential structural principles of national law. In the event of contradiction with those principles, the primacy of supranational law conflicts with the principles of the basic German Law. [...] More particularly, the adverse effects of the system of deposits on the interests of trade appear disproportionate to the objective targeted by the regulation, which is to ensure for the competent authorities as precise and comprehensive a view as possible of market trends. It may be in due proportion to the disclosed points of the Verwaltungsgericht, but still reduced to the essence of the European thought, it has to decline the requested form of legal opinion. The validity of the act of the Union institutions can only be judged in accordance with Union law, even if they collide with national law.’42
Finally, it should be noted that the ECJ rejects the course of argumentation, but is about to reconsider its policy.43
As mentioned above, the legal development within Europe, which mainly has been caused by the existence of the European Community and its competences, had a deep impact. The decisions the European Community draws, are widespread regarding their impact and fundamental issues; therefore, they need to be clarified on a European level in order to assure the coherence between the European Community and the Member States. Consequently, it is important to understand what specific difficulties arose within the changing legal situation.44
For example, Germany demonstrated that specific issue in Solange I Beschluss. The Federal Constitutional Court of Germany declared its authorization to explicitly scrutinize the compatibility of European Law and German Law in case of any objections. ‘[...]denn die Gemeinschaft ist kein Staat, insbesondere kein Bundesstaat, sondern “eine im Prozess fortschreitender Integration stehende Gemeinschaft eigener Art”, eine “zwischenstaatliche Einrichtung” die beiden Rechtskreise unabhängig voneinander und nebeneinander in Geltung stehen und dass insbesondere Gemeinschaftsorgane einschließlich des Europäischen Gerichtshofs über die Verbindlichkeit, Auslegung und Beachtung des Gemeinschaftsrechts und die zuständigen nationalen Organe über die Verbindlichkeit, Auslegung und Beachtung des Verfassungsrechts der Bundesrepublik Deutschland zu befinden haben.’45 Clearly the Court illustrates the boundaries between the two scales of jurisdiction. On the one hand there exists national law and on the other hand there exists European law, in order to harmonize their jurisdiction, coexistence has to be established, regarding the legal obligations, interpretation and acceptance of each legal core requirement. ‘Die Bindung der Bundesrepublik Deutschland (und aller Mitgliedstaaten) durch den Vertrag ist nach Sinn und Geist der Verträge nicht einseitig, sondern bindet auch die durch sie geschaffene Gemeinschaft, das ihre zu tun, um den hier unterstellten Konflikt zu lösen, also nach einer Regelung zu suchen, die sich mit einem zwingenden Gebot des Verfassungsrecht der Bundesrepublik Deutschland verträgt. [...] Inzidentfragen aus dem nationalen Recht der Bundesrepublik Deutschland (oder eines anderen Mitgliedstaates) entscheidet er jedenfalls nicht mit Verbindlichkeit für diesen Staat. [...] Ausführungen in der Begründung seiner Entscheidungen, dass ein bestimmter Inhalt einer Gemeinschaftsnorm inhaltlich übereinstimme oder vereinbar sei mit einer Verfassungsvorschrift des nationalen Rechts - hier: mit einer Grundrechtsgarantie des Grundgesetzes-, stellen unverbindliche obiter dicta dar.’46 The Constitutional Federal Court of Germany manifested their power to perpetuate the core values underlying within their jurisdiction.
The European Community, more specifically, its position within international law as well as its subsequent powers were still in progress caused by a permanent new interpretation. Hence, dissenting opinions were brought up. ‘Diese Frage ist für das Verhältnis des europäischen Gemeinschaftsrechts zum nationalen Recht der Bundesrepublik Deutschland durch Art. 24 Abs. 1 GG in Verbindung mit dem Zustimmungsgesetz zum EWG-Vertrag entschieden. [...] bei sachgerechter Auslegung nicht nur, dass die Übertragung von Hoheitsrechten auf zwischenstaatliche Einrichtungen überhaupt zulässig ist, sondern auch, dass die Hoheitsakte der zwischenstaatlichen Einrichtungen von der Bundesrepublik Deutschland anzuerkennen sind (BVerfGE 31, 145174 ). Das schließt es von vornherein aus, sie nationaler Kontrolle zu unterwerfen. [...] Die von ihnen erlassenen Rechtsvorschriften können daher in ihrer Geltung und Anwendbarkeit nicht davon abhängig sein, ob sie den Maßstäben des innerstaatlichen Rechts entsprechen.’47 The dissenting opinion, which could not withstand the following development is predicated on the thought that the question of the compatibility and interpretation of the European law clearly has to be denied. Due to the accession to the EWG-Vertrag, the contracting Member States complied themselves to the European law, therefore, also to the European jurisdiction.
Through that confession, the Member States evidently abstained from individual or general revision as to general matters, but also to individual judgments. Following the dissenting opinion, there is no further space left for national controlling of European acts.48
About ten years later, in 1986 the German Constitutional Court revised Solange I Beschluss through Solange II. The crucial passage was the following ‘Solange die Europäischen Gemeinschaften, insbesondere die Rechtsprechung des Gerichtshofs der Gemeinschaften einen wirksamen Schutz der Grundrechte gegenüber der Hoheitsgewalt der Gemeinschaften generell gewährleisten, der dem vom Grundgesetz als unabdingbar gebotenen Grundrechtsschutz im wesentlichen gleichzuachten ist, zumal den Wesensgehalt der Grundrechte generell verbürgt, wird das Bundesverfassungsgericht seine Gerichtsbarkeit über die Anwendbarkeit von abgeleitetem Gemeinschaftsrecht, das als Rechtsgrundlage für ein Verhalten deutscher Gerichte und Behörden im Hoheitsbereich der Bundesrepublik Deutschland in Anspruch genommen wird, nicht mehr ausüben und dieses Recht mithin nicht mehr am Maßstab der Grundrechte des Grundgesetzes überprüfen.’49
The Constitutional Court noted that it does not examine the legislation of the ECJ regarding the compatibility with fundamental rights guaranteed through German law. It admitted that the Community itself adequately offers sufficient protection of fundamental rights even if it is contrary to the German fundamental rights in some cases.50
It is apparent from these judgments what consequences the establishment of certain institutions brought along. Clearly it was and still is difficult to bring the national interests and legal machineries in accordance with the European machinery and ideology. The Constitutional Court of Germany demonstrated that it might take its time in order to get along with these challenges. Finally, it can be said that the protection of human rights law cannot be done within a short time based on the ground that the national authorities regarding the administrative field as well as the legal and judicial field need to find their way to cope with new mechanisms and norms. Moreover, the protection of human rights and fundamental freedoms is regulated within the Member States itself on the one hand, but the European protection of these rights on the other hand, has to be implemented into the national laws, which, consequently, causes irritation and problems regarding the compatibility. The national courts are willing to reconsider their decisions and opinions as the Solange Beschlüsse did reveal.
To understand the remarkable effect of the Union, the function of the legal machinery of the European Union needs to be understood. Three main groups can be distinguished; these are the constitutional law, the procedural law and the substantive law.51
The constitutional law of the Union, likewise called institutional law, can be split into three parts: the primary law as the main source are treaties; the legal instruments, founded by the primary law, build the secondary scale.
The secondary law can find its source not only through the existence of the primary treaties, but also through unilateral agreements and conventions.
Supplementary instruments are developed by other authorities, e.g. case law by the Court of Justice of the European Union, basis requirements of international law, the principles of the Union law.52
Before the Bill of Rights, as we know it in 2013, has been established, a few further important steps have been taken. A significant impact, regarding human rights within the Community, has been reached through treaties. Therefore, the more relevant treaties shall be discussed shortly.
The Maastricht Treaty, which entered into force in 1993, clarified that fundamental rights are guaranteed, firstly, by the Convention for the Protection of Human Rights and secondly, resulting from the particular constitutions or more precise from their traditions. Fundamental rights reached the status of being accepted as a general principle of Union law in terms of Article 6 of the EU Treaty where it says ‘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. [...] The Union shall respect the national identities of its Member States.’53 Clearly, the EU Treaty does not establish specific or precise formulated fundamental rights itself but only refers to the acceptance of Constitutional traditions and its effects.
Primarily, the Treaty of Nice54 proclaimed the implementation of the Charter since then it constitutes a written legal basis for the legislation of the ECJ. After the disaffirmation of a Constitutional Treaty on European scale, the Treaty of Lisbon refers to fundamental rights. Besides developing numerous drafts, amendments and protocols to the treaties already in existence, the Treaty of Lisbon for the first time ever recognized a Charter of fundamental rights as part of the primary law; and did not only codify the existing rights. The Treaty of Lisbon combines the Maastricht Treaty and the Treaty of Rome, now known as the Treaty on the Functioning of the European Union. The Charter constitutes a Bill of Rights especially adapted to the system of the European Union. This is provided in Article 6 (1) of the Treaty of Lisbon ‘The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 2007, which shall have the same legal value as the treaties since it entered into force in 2009.’55 56
Now, as the Charter is integrated into the European code as primary law the Union’s organs have decided to align their acting, not only in terms of legislation with the Charter, but also the Court, as second effect, has to strike down specific parts of the legislation if they are contravening.57
The Charter of the European Union is recognized as the first explicitly established Bill of Rights for the Union. The document is fragmented in 6 categories: dignity, freedoms, equality, solidarity, citizens’ rights and justice.
- The first fragment contains the right of life, prohibition of torture,the death penalty and slavery. Also human cloning and eugenic acts. Mostly these rights find its source in the ECHR.
- Under the second title the rights of liberty, privacy, marriage, thought, individual integrity, personal data protection, work, education, asylum, assembly and property are protected.
- The third chapter combines prohibition of all forms of discrimination regarding disabilities, age, sexual orientation, religious and cultural differences, linguistic diversities, specific rights of children as well as of elderly. Very important is the stay of equality before the law.
- Social rights and rights in the working field, e.g. fair conditions, unacceptable dismissals, payment, access to health institutions, housing assistance, are guaranteed through the fourth chapter.
- The fifth chapter covers administrative rights such as the right to vote, freedom of movement within the Union, the right of accessing documents.
- Through the sixth title the right of achieving a fair trial, the principle of legality, the right to an effective remedy, presumption of innocence, non- retrospectively.58
In its preamble the Charter declares in specific to guarantee the diversity of the cultures and backgrounds of the Member States as well as the position of the individual. An important fact is that the Treaty does not transfer more responsibilities to the Union, nor does it arise in general validity. The scope of the Bill of Rights is limited to cases where the Member State applies European Law but only then. The Charter contains two appreciably different forms of instruments, the negative and the positive rights. For the individual the positive rights impact the legally protected position, because the Member State not only has to guarantee fundamental rights but also has to set an action in the given area in order to protect the individual. The negative rights apply to the abstention of the Member State in certain fields like freedom of expression. Regarding the Member States of the
Union it has to be said that the UK and Poland refused to sign parts of the Treaty therefore an exception has been made so the affected parts are not legally binding for them. The Charter is related to the ECHR, furthermore, it refers to the core rights of it. The application of the Bill of Rights does not transfer more competences than already conferred. To put it into other words: ‘The Constitution seeks to combine the right of the majority to shape the development of society with the right of individuals and minorities to be treated fairly and equally. [...] It corresponds in the first instance to the parliament to identify and elaborate, i.e. to reason upon, the fundamental values that unite the members of the political community because it is the body that represents more opinions and interests than any other institution.’59 The Charter illustrates the civic bondage between the contracting States throughout a solid base of fundamental values.
The ECHR is of great significance in general, moreover, the main focus within this work concentrates on the jurisdiction of the ECtHR, therefore, I would like to start this Chapter with some historically and legally relevant facts regarding the background of the system and operating institutions in order to fully understand the ‘Strasbourg machinery’ as we know it nowadays.
The European Convention on Human Rights and Fundamental Freedoms opened for signature in Rome in 1950 after authorizing the Consultative Assembly of the Council of Europe.60 61 Regarding the situation in Europe as well as the leading aim, it definitely can be recognized as a fast process. Analyzed through the perspective of intention, it clearly could be seen as a response regarding the aftermath of the Second World War. Actually, it can be reduced to a significant fact - stable legal democracy - which literally forced the development of a functioning and peace restoring system. But not only to restore and keep freedom, but also to deliver a system which is based on the consent of all States which seemed to be the most important aim at that point.62 It was significantly influenced by the ‘Convention on the Prevention and Punishment of the Crime of Genocide’63 as well as by the ‘Universal Declaration of Human Rights ‘.64
Pierre-Henri Teitgen65 as one of the founding fathers mentioned in 1949. ‘[...] with the principles of natural law, of humanism and of democracy, it would contribute to the development of their solidarity [...]’.66 This thought can be recognized in the ‘travaux préparatoires’ of the ECHR.67 The documents prepared by the Secretariat-General laconically reveal their intentions ‘[...]of greater unity between its members and one of the methods by which that aim is to be pursued is in the maintenance and further realization of human rights and fundamental freedoms; [...] reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights [...].’68 Before entering into force several discussions, problematic issues and unsolved matters were brought up. The legal experts recognized the urgent need to work on legal instruments and to give access to this to individuals. This thought generated an amount of questions, reservations and negotiation among the representatives. Quite a predictable chain of thoughts obviously. How can “some paper” offer protection if individuals are excluded. Excluded in a certain way because only the powers were in charge of recognizing abuses; this lead to the fact that individuals could not specifically be protected in their rights, an inevitable circumstance caused by the wider interpretation of a unity which bound the States, although not denying their sovereignty.69 The Convention is a document which manifests non detailed fundamental rights. So therefore, (e.g.. Art 1) it fell to the States themselves to fill in the details and to offer an effective legal system which could abandon violations.70 Compared to the version of the Convention as we know it nowadays it presented itself as simple and in a modest way because the idea of a union was regarded with reluctant enthusiasm. Still, the Convention became the first legislative achievement within such an organization.71
The non-excepted peril of being flooded by individual petitions which indeed would have nothing to do with the main purpose forced some reaction and not only, but also because the Commission was politically influenced; hence, an independent level of jurisdiction had to be built up.72 In 2010 Protocol No. 14 entered into force. An important step has been taken, the Court now has the ability to concentrate on human rights issues or violations of urgency. Nowadays the jurisdictional system is sophisticated. It can be divided into a few sections: inter-state cases, advisory opinions requested by the Committee of Ministers and individual applications against contracting states due to violation accuses.73 The European Court of Human Rights is a supra-national Court incorporated by the European Convention on Human Rights. The decisions made by the Court are binding for the participating states, which is a highly appreciating accomplishment compared to other treaties. Firstly, the responsibility was assumed by the Commission until 1998 when the Courts function was turned into full-time responsibility to abolish the Commissions liability in this field. This development became manifested when the Protocol No. 11 entered into force especially in Art 19. Here it says ‘ to ensure the observance ...there shall be set up a Court of Human Rights...’74
The Convention does not only offer substantive provisions, but also assurance of the observance by each contracting state.75 This primarily means that each state implements the provisions, in addition to any violations through trials before national authorities.76 We are dealing with an international treaty; therefore, every single State needs to ratify the document. In case of accuses before ratification the principles are not accepted; the principles are not applicable in such a situation. This does not necessarily affect the applicant State. In fact, the ECHR covers a broad variety of responsibilities of the States. If a contracting party exercises their sovereignty with effective power outside their national border, the responsibility of them persists. A similar situation is given, in case of a continuing violation. Back then when, the institution having jurisdiction, the Commission, declared these cases admissible. But there are exceptions, for example, Turkey signed the treaty with some restrictions. An application from an individual can have a far reaching effect, as the alleged violation could have happened before the ratification and so will still be admissible.
If the remedy for the concerned matter is unsatisfactory for the injured party´s view or inadequate, or in terms of an unavailability of national procedure, the ECHR itself provides a supervisory mechanism.77
The European Commission was abolished therefore the Court turned into a full-time institution. But the Court suffered from a lack of effectiveness caused by the enormous number of applications. ‘In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favorable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR).’78 Protocol no. 11 simplified the procedure regarding the basic issues, yet still the increasing amount of workload overtaxed the resources of the Court.
As an international organization the Council of Europe cannot set legally binding law like the UN organs can. The focus of the work relies on the thought of establishing human rights. In addition to that the Council emphasis on the co-operation between the european nations regarding cultural, democratic and social matters. The Council also operates in the range of facilitation common legal basis or standards.79
Although the core responsibilities of the Commission were transferred, it is essential to understand the concept which built a solid base for the judicial system; hence, a short description of the Commission seems necessary.
When establishing the ECHR the European Commission on Human Rights was foreseen as a control entity of the judicial functions. The primary concept behind the formation was to build a barrier in fact, it was to stern frivolous or unfavorable petitions, which was received by the Commission. Another essential function was to provide individuals the possibility of channel law- suits against States. ‘If the Court is to carry out its work effectively in every case of a violation of human rights or fundamental freedoms, access to the court must be available not only to States , but also, after an opinion has been rendered by a Committee of the Council, to individuals [...]’80 Clearly, the Commission was oscillating between following; firstly to protect the Court from massless complaints and individuals to ensure the accessibility to the Court and secondly, to decentralize the traditional state focused on international legal mechanism. In 1994, all contracting parties had agreed to private petitions. In 1999, the entire competences of the Commission had been absorbed by the newly reformed Court of Human Rights.81
The Convention Rights are fully listed in the Appendix, therefore this only is an excerpt:
Article 2 protects the right to life; further in Articles 3 and 4 the prohibition on torture, inhuman or degrading treatment and slavery are covered.
Article 5 contains the right no to be arbitrarily detained, further on, Article 6 guarantees a fair trial. Within Article 7 retroactivity of criminal law is mentioned.
Article 8 and 9 protect the right to family, private life, home, correspondence and the right of thought, conscience, and religion.
The freedom of expression and assembly as well as association are guaranteed through Articles 10 and 11.
Article 12 constitutes the right to marry and have a family.
The right to access to domestic remedies and the prohibition of discrimination are covered through Articles 13 and 14.82
From Section Three onwards the focus concentrates mainly on alleged violations of Article 3, Article 8 and Article 10 of the Convention. Consequently it is required to know the specific definitions and meanings which are generelly utilized by the Court when it comes to legal analyzes.
Article 3 - Prohibiton on torture, inhuman or degrading treatment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment
Article 3 ECHR has a fundamental character, which means that no derogations are permitted in time of peace and in time of war, respectively. The impact of utilizing ‘the living instrument’ or in other words ‘the dynamic interpretation’ as a method of interpretation is massive in the case-law of the ECtHR; because the interpretation, in respect of the changing circumstances, consequently leads to different definitions troughout the time. The ECtHR refers to a definition provided by the UN- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which descirbes the terms as follows ‘any act by which severe pain or suffering, whether physical or mental, is initentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person committed or is suspected of having committed, or intending or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.‘83 The ECtHR is not articled to this definition but it was and still is a meaningful description that led to few important criteria which the EctHR emphazises on; a minimum level of severity, the act has to be based on intent, and finally the act needs to be attributed to a Member State. This leads to the effect that trivial complaints do not fall within Article 3 ECHR, unless the treatment caused severe humiliation or suffering to the victim. Regarding the distinction between the two terms, it has to be said that a distinction is not necessary, and in many cases not even possible. By definition, Article 3 ECHR only can be committed by state organs; consequently, the degrading act or interference must stem from the authorities in a certain manner.84
Article 8 - The right to respect private, family life, home and correspondence
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The protection of the family can easily be found at more than only one place in the Convention but Article 8 ECHR is the most significant one. It does not exist one clear definition of the term family caused by various reasons, e.g.: the changing society, different background and culture in Europe, etc. In fact the ECtHR once said that ‘the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life.'85 On other occasions the Court noted that a family also exists although a married couple did not set up home together. In respect of children, a family between the children and the parents is given from the beginning of life onwards. Only a few exceptional circumstances lead to the presumtion that a family, which seems to be naturally linked, is not given. Family life consequently protects the de facto relationships as well. It cannot be denied that the existence of some form of hierarchy is dominant, e.g.: if a case is brought before the ECtHR. 'At the top of the hierarchy is the traditional heterosexual relationship of married couples, moving through parenting between non-married heterosexual couples down to more removed family relationships.'86 The pronouncements of the Court lead to the conclusion that the core was and still is very much the family in a traditional sense. Of course, further aspects need to be covered when it comes to 'family-questions', e.g.: custody, care proceedings, adoption, the rights of inheritance, acts of national authorities when it comes to expulsion of non-nationals, etc. The Court increasingly explored the scope of the protection of private life wihtin its case-law. When following one possible point of view, it actually can be said that all reasonable aspects can be reduced to five main categories; 'freedom from intereference with the physical and psychological integrity, freedom from unwanted access to and collection of information, freedom from serious environmental pollution, the right to be free to develop one's identity and the right o live one's right to live life in the manner of one's choosing.'87 Of course, if it is unavoidable or necessary the Court adapts these categories to offer manifestly well founded judgments in respect of the situation concerned. An other author simply said that the concept of private life has not yet been conclusively defined, but it has been referred to in a wide range of contexts.‘The Court has held that the notion of privacy is not limited to the ‘inner circle’ of an individual’s private life, but includes the right to establish and develop relationships with other human beings. Private life includes physical, psychological, and moral integrity - incorporating ‘multiple aspects’ of a person’s physical and social identity.’88 In respect of the second point of view, this definition includes, for example, mental health, personal ethnic and sexual identity, sexual orientation, the right to establish and develop relationships with other individuals, recognition of the martial status by the states, pregnancy, a person’s name, etc.89 Regarding the term home, the Court includes, inter alia, ‘permanent and temporary places of residence, offices and business premises, and also places of residence that are not legally established. [...] includes the right to enjoy the home.’90 The right to respect the individual’s home should not lead to the conclusion that the ECHR established the right to be provided with a home. Article 8 ECHR also protects a wide range of communications. For example, post, telephone, fax, e-mail or personal internet usage. Although these rights are mainly protected by other elements like the right to private life.91
1 http://www.un.org/en/events/humanrightsday/2011/sg.shtml, retrieved 20.09.2012. XV
1 e.g.: http://echr.coe.int/NR/rdonlyres/C3804E16-817B-46D5-A51F-0AC1A8E0FB8D/0/ DG2ENHRHAND022004.pdf, retrieved 17.12.2012.
2 RTBF v. Belgium , judgment of 29.3.2011, ECHR.
3 RTBF v. Belgium , judgment of 29.3.2011, ECHR.
4 e.g.: Peterson M. J., The United Nations General Assembly (2006) .
5 e.g.: Johnson M. G./Symonides J., The Universal Declaration of Human Rights: A history of its creations and implementation 1948 - 1998 (1998) .
6 The United Nations Department of Public Information, The United Nations and Human Rights 1945 - 1995 Volume VII (1995) , p. 143.
7 S/Res/660 (1990).
8 http://www.journal-iostudies.org/sites/journal-iostudies.org/files/JIOSfinal_3_1.pdf, retrieved 31.08.2013. 4
9 e.g.: Slomanson W.R., Fundamental Perspectives on International Law (2011).
10 Jordan R.S., International Organizations: A Comparative Approach to the Management of Cooperation (2001).
11 http://www.un.org/en/documents/charter/, retrieved 21.07.2013. http://www.un.org/en/, retrieved 26.07.2013.
12 Observing State: The UN guarantee those two States ( Holy See and the State of Palestine) e.g. the right to participate, observe, sign on resolutions, submit amendments and drafts. But there do not exist voting rights in terms of resolutions or other similar issues.
13 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G93/142/39/PDF/G9314239.pdf?OpenElement http://ap.ohchr.org/documents/alldocs.aspx?doc_id=5820, retrieved 21.07.2013.
14 in Appendix.
15 Adopted by a vote of 8 abstentions, 0 votes against it and 48 in favor. The Soviet Union, Saudi Arabia, Ukrainian SSR, Byelorussian SSR, Peopleʼs Federal Republic of Yugoslavia, Peopleʼs Republic of Poland, South Africa and Czechoslovakia. Reasons for the abstentions quod vide in The United Nations Department of Public Information, The United Nations and Human Rights 1945 - 1995 Volume VII (1995).
16 e.g.: Jayawickrama N., The Judical Application of Human Rights Law (2002), p.25 and p.130.
17 A/Res/62/228 (2007).
18 Criticism was brought up by several authors regarding the question whether or not the UN offers a sufficient peacekeeping: Maurice B., The UN as an Organization. A Critique of its Functioning in M. Bertrand, D. Warner, A New Charter for Worldwide Organization? (1995), p.359. ʻTo ensure real defence of democracy, human rights and peace, the establishment of an entirely new worldwide organization is indispensable, the main features of which are easily identifiable. The need for coordination at the global level should lead to the institutionalization of regular summit meetings between representatives of the major countries and the diverse regions of the world. The development of democracy should eventually emerge with regard to representation of people at the world level.ʼ
19 e.g.: Basic facts about the United Nations (2004), p.11.
20 e.g.: Jayawickrama N., The Judical Application of Human Rights Law (2002).
21 S/Res/276 (1970).
22 e.g.: Jayawickrama N., The Judical Application of Human Rights Law (2002), p.26. Further reading for the first draftings in Yearbook on Human Rights for 1947, (New York: United Nations, 1949).
23 South-West Africa Cases, judgment of 18.07.1966, ICJ. Namibia, the former South-West-Africa, has been declared a League of Nations Mandate territory after being captured by Germany. The essential principles of the Mandates System consisted in the recognition of specific rights for the inhabitants of underdeveloped territories. An advanced Nation was declared as the ʻMandatoryʼ. The Union of South Africa has been in charge of the administrative responsibilities. After World War II, the Mandate was considered to become a United Nations Trust Territory, in order to be under UN control, which has been refused by the Union of South Africa. Furthermore, it refused the transition to independence of the territories. The ICJ ruled that there was no obligation for converting South-West Africa into a UN trust territory, but that the bondage based on the League of Nations Mandate was to be considered. The Court found that, the Mandate in question had become extinct because of the dissolution of the League of Nations but the obligation to perform compulsory jurisdiction of the Court was transferred and therefore still intact. Logically, they had been subject to the obligations and entitled provisions, under the Charter of the UN. The Respondent bound itself when ratifying the Charter while both, the League of Nations and the Permanent Court were still in existence.
24 Nottebohm Case, judgment of 06.04.1955, ICJ. This case had been brought to the Court by Liechtenstein against the Republic of Guatemala. Liechtenstein claimed that the Government of Guatemala acted against the international rules of law. Guatemala alleged several reasons against the accusations, the most significant reason was that the claim was inadmissible on the ground related to Nottebohmsʼ nationality. At the time of the dispute, he was a German national, when he applied for naturalization in Liechtenstein while having his fixed abode in Guatemala. Based on the Liechtenstein Law of 4th Janary 1934 several necessary conditions were laid down in order to achieve the Liechtenstein nationality. The Court dealt with the question, whether or not, the naturalization had to be internationally recognized. Each State decides within its domestic jurisdiction, which is settled by its legislation, the rules relating to nationality. The Court held that specific facts, which are divergent from case to case have to be considered as well, although States are in charge of setting binding rules relating to nationality. Therefore, the claim was seen inadmissible by the ICJ, on the grounds of a lacking bondage between Nottebohm and Liechtenstein. Further on, the ICJ stated that this was not inconsistent with the international law because no State can claim that the regulations which were formulated by themselves were entitled to be recognized by an other State, unless the concerned State acted in conformity with the general rules and aims.
25 Case concerning United States diplomatic and consular staff in Tehran, judgment of 24.05.1980, ICJ. This case had been brought in by the United States of America against Iran because of a seizure of diplomatic offices and staff Members by militant revolutionaries of Iran. The Court stated that Iran violated their obligations to the United States, thus neglected the obliged responsibilities which led to an unlawful detention. Consequently, Iran immediately was requested to release American nationals, who were held as hostages and entrust them to the protecting power due to the Vienna Convention on Diplomatic Relations. Furthermore, the Court clearly forbid the Iranian Government to subject consular and/or diplomatic staff of the United States regarding judicial proceedings. Additionally, the Court explicitly prohibited them being forced to participate in any form, e.g. as witnesses. The ICJ pronounced that Iran had to make reparation for the caused injuries.
26 Filartiga v. Pena-Irala, judgment of 06.06.1980, ICJ. The plaintiffs son was tortured and murdered by Pena-Irala, who was Inspector General of Police by that time. All of them were citizens of Paraguay. Filartiga brought the case to the Trial Court which dismissed the claim. The accused party moved to the United States with a visitor visa. In the US, the sister of the murdered person caused the deportation and conviction for the wrongful death of Filartiga. The Court of Appeal had to decide whether or not the law of nations had to be applied. In specific, the Alien Tort Statute says, that the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The Court declared, that the conduct alleged violated the law of nations. This was to say that, any act, which is committed by state officials against an other individual held in detention clearly violates internationally recognized human rights law, therefore the law of nations. The Court had to interpret the law nowadays as it had evolved within civilized nations, hence the United Nations Charter made it obvious that the treatment and behavior towards its own citizens had to be a matter of international concern.
27 Universal Declaration of Human Rights
28 e.g.: Kesselman et al., European Politics in Transition (2005).
29 Lipgens W., Loth W., Documents on the History of European Integration, volume 3 ʻ The struggle for European Union by political Parties and Pressure Groups in Western Countries 1945 - 1950, p. 103.
30 e.g.: Foster Nigel, EU Law - Directions (2010).
31 The Maastricht Treaty entered into force in 1993.
32 Foster Nigel, EU Law - Directions (2010), p.5.
33 e.g. Foster Nigel, EU Law - Directions (2010).
34 Case 11-70, judgment of 17.12.1970, ECR.
35 Regulation No. 120/67 of the Council of 13 June 1967, EEC. 14
36 Regulation No. 473/67 of the Commission of 21 August 1967, EEC.
37 Case 11-70, judgment of 17.12.1970, ECR.
38 Case 11-70, judgment of 17.12.1970, ECR.
39 Case 11-70, judgment of 17.12.1970, ECR.
40 Case 11-70, judgment of 17.12.1970, ECR.
41 Case 11-70, judgment of the Court of 17.12.1970, ECR. 16
42 e.g.: Case 11-70, judgment of the Court of 17.12.1970, ECR.
43 Case 11-70, judgment of the Court of 17.12.1970, ECR.
44 e.g.: Foster Nigel, EU Law - Directions (2010).
45 BVerfGE 37, 271 (Solange I).
46 BVerfGE 37, 271 (Solange I).
47 BVerfGE 37, 271 (Solange I).
48 BVerfGE 37, 271 (Solange I).
49 BVerfGE 73, 339 (Solange II).
50 Case 11-70, judgment of the Court of 17.12.1970, ECR. 19
51 The procedural law regulates the administrative law of the European Union, moreover, it mainly comprises the actions for any judicial review of the European Court of Justice. The substantive law largely consists of secondary law and contains the legal rules which have been established in order to materialize the policies of the laws agreed under any treaty.
52 e.g.: Foster Nigel, EU Law - Directions (2010).
53 in Appendix.
54 Although the Treaty of Nice was signed by the Member States in 2001, it did not enter into force until 2003 on the ground of rejections by Ireland.
55 in Appendix.
56 e.g.: Foster Nigel, EU Law - Directions (2010).
57 e.g.: Di Frederico G., The EU Charter of Fundamental RIghts: From Declaration to BInding Instrument (2009).
58 e.g.: Di Frederico G., The EU Charter of Fundamental Rights: From Declaration to Binding Instrument (2009).
59 Di Frederico G., The EU Charter of Fundamental RIghts: From Declaration to BInding Instrument (2009), p.8 to 9.
60 e.g.: Kleinsorge Tanja E.J., Council of Europe (2010) .
61 not to be confused with European Council or Council of the European Union; also see in: http:// hub.coe.int/web/coe-portal/european-union?dynLink=true&fromArticleId=&dlgroupId=10226&layoutId=772, retrieved 05.12.2012.
62 The fact that the consensus amongst the Member States is of great importance can still be found within the judgments delivered by the ECtHR. For example, when the Court notes that the Member States enjoy a certain margin of appreciation in assessing whether or not and to what extent interferences are justifiable. In the following, the Court observes if the Convention rights are still protected although interferences with those rights are given. It reiterated several times that the final decision regarding the fulfillment of the Convention requirements rests with the Court. As to the consensus, the Court has regard to the changing situations amongst the Member States, consequently, if any consensus in respect of a specific issue emerges, the Court has to consider the changed circumstances and further on it has to reconsider its assessment.
63 The General Assembly adopted the Genocide Convention by unanimous vote of the 56 participants at its 179th plenary meeting, on 9 December 1948. After obtaining the requisite twenty ratifications required by article XIII, the Convention entered into force on 12 January 1951.
64 also see in: Collected Edition of the ʻ Travaux Pr é paratoires ʼ of the European Convention on Human Rights Vol. I: Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly, II May-8 September 1949. http://library.law.yale.edu/collected-travaux-preparatoires, retrieved 13.01.2013.
65 Teitgen was the former Minister of Justice (1945 - 1946) and Judge on the European Court of Human Rights (1976 - 1980).
66 e.g.: Robertson A., Council of Europe - Collected edition of the “ travaux pr é paratoires ” of the ECHR, (The Hague: Nijhoff M.) (1975). http://library.law.yale.edu/collected-travaux-preparatoires, retrieved 13.01.2013.
67 e.g.: http://library.law.yale.edu/collected-travaux-preparatoires, retrieved 13.01.2013.
68 Nijhoff M., Council of Europe: Collected Edition of the “ travaux Pr é paratoires ” of the European Convention on Human Rights Volume VI (1985), p. 274.
69 e.g.: De Salvia M.,Villinger M. E., The birth of European Human Rights Law (1998).
70 e.g.: travaux préparatoires Vol. IV. http://library.law.yale.edu/collected-travaux-preparatoires, retrieved 13.01.2013.
71 e.g.: Macdonald R.St.J., Matscher F., Petzold H., The European System for the Protection of Human Rights. (1993).
72 e.g.: De Salvia M.,Villinger M. E., The birth of European Human Rights Law (1998).
73 e.g.: Smith R.K.M., Van den Anker C., The essentials of human rights (2005).
74 in Appendix.
75 State: The responsibility is extensive. The ECHR can be applicable (needs to be settled by agreement with the contracting State after a reservation) to the entire territory of a State. Including territories for whose international concerns the contracting State is responsible for. e.g.: The United Kingdom in respect to most of it´s dependent territories also see in: Council of Europe, Collected Texts, ( 1994).
76 e.g.: see in Appendix - Article 13 ECHR.
77 e.g.: Smith R.K.M., Van den Anker C., The essentials of human rights (2005). Macdonald R.St.J., Matscher F., Petzold H., The European System for the Protection of Human Rights. (1993).
78 Laurence R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, Vol. 19 no. 1, 125-129, EJIL (2008).
79 Macdonald R.St.J., Matscher F., Petzold H., The European System for the Protection of Human Rights. (1993).
80 Janis M., Kay R., Bradley A., European Human Rights Law (2008) , p. 25.
81 e.g.: Janis M., Kay R., Bradley A., European Human Rights Law ( 2008). 27
82 in Appendix.
83 The Convention was adopted by the UN-General Assembly on the 10th December 1984. It entered into force on the 26th June 1984.
84 e.g.: Jacobs F.G., White R., Ovey C., The European Convention on Human Rights (2010).
85 Jacobs F.G., White R., Ovey C., The European Convention on Human Rights (2010), p.335.
86 Jacobs F.G., White R., Ovey C., The European Convention on Human Rights (2010), p.337. 29
87 Jacobs F.G., White R., Ovey C., The European Convention on Human Rights (2010), p.357.
88 Leach P., Taking a Case to the European Court of Human Rights (2011), p.315.
89 e.g.: Leach P., Taking a Case to the European Court of Human Rights (2011), p.315.
90 Leach P., Taking a Case to the European Court of Human Rights (2011), p.318.
91 e.g.: Leach P., Taking a Case to the European Court of Human Rights (2011). 30
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