Foundations of the European Convention

Week One: Context, Background and Institutions Context Convention was a direct consequence of the global war but can also be traced back to the Declaration of Independence and the French Declaration of the Rights of Man. Respect for personal autonomy and the inherent dignity of persons and the equality of all men and women. The recognition that the way in which a state treats its nationals is a matter for international concern and action was ground-breaking, and it paved the way the introduction of international human rights enforcement mechanisms. The Convention is inspired from the Universal Declaration but it does not duplicate the rights referred to there. Two concerns:   Had to provide a means through which it was believed that the most serious human right violations which had occurred could be avoided in the future. To protect States from Communist subversion (necessary in a democratic society) Convention signed in 1950 In order to ensure a speedy acceptance the rights included were uncontroversial and linked to the recent past. Further rights would be added through Protocols, although the institutions have never considered them as static. Structure and aim of the Council of Europe – The Convention was created to reflect the concerns and objectives of the Council, this is also set out in the Constitution and the Stature of the Council. The aim is ‘to achieve a greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress’ The Council operates through 3 organs, the Committee of Ministers, the Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe. These are supported by the Secretariat. Member States must respect the Councils’ decisions laid down in the Convention, th enforcement of HR has traditionally been left to national States however history has proven the inadequacies of this method. New members to the Council of Europe must accede to the Convention and must recognise both an individual right of application to the Court and of a wholly judicial system for the protection of HR. Content if the European Convention – First generation rights are the civil and political rights Second generation rights are the social and cultural rights Third generation rights are rights concerned with people collectively and include the right to development etc. There is a possible fourth generation which could include scientific and technological rights. Not all contracting parties to the convention have ratified every single article and protocol, this proves just how controversial the convention really is. Hierarchy – There is no formal hierarchy of rights set forth, it has been established by case law that there must be a balance struck between the competing interests, usually the individual v community. There are unqualified rights (which some are non-derogable) and qualified rights. Unqualified include the right to life and are subject to exceptions listed in the Article, but some are said to be absolute in the sense that no derogations are permitted. Interim measures are permitted to individuals to protect the applicant and are usually available when there is a risk of irreparable damage to one of the core convention rights. Qualified rights arise where the Convention specifies a right but indicates that a State may interfere with it in order to secure certain interests. The person alleging the violation has the burden of proof on the balance of probabilities. If an interference is shown then it is down to the State to prove that the interference was justified using the doctrine of proportionality. System of Protection – Old system =       Two organs, European Commission of Human Rights and the European Court of Human Rights Function was to deal with applications made by States and individuals alleging violations Once registered the Commission considered whether the application met the admissibility requirements and made a decision If inadmissible that was the end If admissible then the Commission would go on to conduct an investigation on the merits of the complaint This would result in a report from the Commission expressing its opinion as to whether there had been a violation and communicated to the applicant and respondent New system =   The Commission and the Court were replaced with a permanent court which would handle both the administrative and merits of the case It was also charged with securing the friendly settlement of matters before it     The Commission can only rule an application inadmissible if it is unanimous, the admissibility criteria have not changed If admissible the case will be admitted to a seven judge chamber The Contracting parties undertake to abide by the final judgement to a case of which they are parties The final judgement will be transmitted to the Committee of Ministers whose sole role in the process is to supervise the execution of judgements Role of Secretary General – This is a senior official who is elected for a period of 5 years and will have an important monitoring function within the Council of Europe. General practice to date has been to address requests to all contracting States but more recently the secretary general has issued individual questions to specific contracting states. The secretary general will compile the responses and bring them to the notice of t Parliamentary Assembly and the Court. These reports will not be subject to scrutiny. The secretary general has no standing to bring a violation to the attention of the court but could possibly be brought to the attention of the Committee of Ministers. The role now overlaps with the Commissioner for Human Rights. Commissioner for Human Rights – Established by resolution of the Committee of Ministers and is elected by the Parliamentary Assembly and must promote the education and awareness of human rights. He may not take up individual complaints. A substantial annual report is submitted to the Committee of Ministers and to the Parliamentary Assembly. The commissioner may also make recommendations, opinions and reports on any matter within his competence. Other HR Instruments – There were a total of 203 Council of Europe Treaties which address HR issues, and this number will be growing. Relationships with other international courts – There is a dispersal of responsibility for interpreting international human rights law among different judicial and quasi-judicial bodies. The Strasbourg court has always stated that interpretation of the Convention must take into account of relevant rules of international law. However, the risk of diverging interpretation remains. Proceeding before the Court Composition and General Procedure – The number of judges is equivalent to the number of contracting parties to the Convention. Judges are elected by the Parliamentary Assembly from a list of 3 by each State. They are currently elected for a renewable period of 6 years. Where a contracting party shows that it has used all due care in seeking to nominate at least one candidate of each sex, it is not open to the Parliamentary Assembly to reject a contracting party’s list on the sole ground that no female candidate is listed. The committees are competent only to declare applications inadmissible or strike them off the court’s list of cases. The court is divided into 5 sections. Within these section, chambers of seven judge panels will examine the admissibility and merits of cases. The Grand Chamber will allow a party to appeal, this must be submitted within 3 months of a final judgement. The panel will accept if ‘the case raises a serious question affecting the interpretation or application of the convention or the protocols or a serious issue of general importance’. The court has a president and two vice-presidents. They will direct the work and administration and represents the Court, but will not take part in the consideration of the cases unless he is the national judge. Judges deliberate in private and the details are secret, the proceeding before the c however will be public (usually). All documents will also be accessible to the public. The registry has become important in the case management. It will conduct correspondence with applicants and contracting parties for case examination and advise the court on national law. Procedure prior to the decision on admissibility – Applications originate in a letter to the registrar setting out the complaint. Can be represented by a lawyer or wait until the case is communicated to the respondent State. The registrar lawyer will contact the applicant for more information and copies of documents and national judgements. Must provide a statement of the facts and arguments. A committee will examine the file and decide or not whether it is admissible or not. There are no fees or charges for the applications to the Court. The court may also offer free legal aid at any stage of the proceedings after the respondent’s states admissibility has been received, but applicants must provide a certified declaration of means showing that they have insufficient means to meet their costs. Legal aid can be granted to pay for lawyers’ fees and other necessary expenses. The Court has no power to order interim measures to safeguard the position of the parties. However, the court can indicate to parties any interim measure that they feel should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. Freedom to correspond with the court is also protected in the European Agreement and must respect the rights of those involved in most captivities. Examination of admissibility – All applications are referred to a committee of three judges, the decision will be final with no opportunity for appeal and the decision must be taken unanimously. It is arguable that the procedure is justified to be so blunt and restrictive due to the vast case load that it has and it must remain fast and economical. Applications not dealt with by the committee will be dealt with in chambers on the basis of a report. The chamber can immediately declare a case inadmissible. Once more there is no chance of an appeal. The court will then decide on the admissibility and the merits jointly in order to save time. A contracting party which is not the respondent state may intervene when the applicant is its national. Facts will be established by the domestic courts and the task of the Strasbourg Court will be limited to examining these facts to assess compliance. If there is confusion or the facts are in dispute then the court will be required to establish them itself. The court can appoint a delegation of judges to conduct an inquiry or carry out an investigation. Conditions of admissibility –      Can the applicant claim to be a victim: Article 34 excludes the bringing of individual applications by governmental bodies or public corporations which are under the control of the State. The court has no jurisdiction on an individual application to review national law or practice in the absence of an alleged violation of a convention provision. The court has given a wide definition of ‘victim’. A person will not cease to be a victim by reason of some acknowledgement by the respondent state that there has been a violation of the Convention. In order to lose victim status there must be a remedy which constitutes full redress for the violation which the victim has suffered. Committed by a contracting party: The violation must have been committed by a contracting party otherwise the application is outside the Courts ratione personae. The state cannot be held liable for the acts or omissions of private persons. An application will be inadmissible if it concerns an alleged violation outside the territory of the state (ratione loci) and if it occurred before the state accepted the jurisdiction of the court (ratione temporis). Scope of the Convention and Protocols: This would be incompatible with ratione materiae. Domestic remedies: These must be exhausted in order to give the State the chance to remedy an alleged violation. Applicants are under an obligation to use the remedies provided by national law where sufficient to afford redress in respect of the breaches alleged. There is no obligation to attempt to use a remedy which is inadequate or ineffective, but a mere doubt will not suffice. The exhaustion rule is inapplicable where an administrative practice is in issue, this is because there is a risk of tackling only a single instance of a convention violation, and this is a systematic problem. Time limit: An application is inadmissible if it is not brought within 6 months from the date on which the final decision was taken. The applicant cannot reopen the time     limit. This is applied strictly by the court and cannot be waived by the respondent State. Been brought before: there has not been a situation where the court has done this. Since there is no provision for reopening a case, it is necessary to treat the new material as a fresh application. Ill-founded: An assessment of the substance of the case and can weed out at an early stage unmeritorious applications. Abuse of the right of application: An applicant makes improper use of the procedural rights to bring an application before the court. The presentation of incomplete and misleading information to the Court will constitute an abuse of the right of application. Anonymous: The court must reject any application which is anonymous. The court will ask if an applicant will want their identity disclosed, but initially it cannot be anonymous. A judgement must give a summary of the facts, the arguments and the reasons for the courts’ decision. The judgements will be communicated in open court and also in writing to the parties. The parties then have 3 months if they wish to take the case to the Grand Chamber. Pilot judgements are used in order to address systematic problems in the contracting parties which would lead to multiple applications to the Court. They set the environment in which the systematic problem can be addressed.    Speedier redress for victims Redressed within national order Removal of large case load Remedies under Art. 41 – Respondent states are in principle free to choose the means whereby they will comply with a judgement in which the Court has found a breach. However, it lacks clear principles as to when damages should be awarded and how they should be measured. The court will only award damages in respect of loss linked to the violation. Advisory opinions – These are given at the request of the Committee of Ministers on legal questions concerning the interpretation of the Convention and its accompanying Protocols. The intention was to provide for advisory opinions on questions which could not arise from contentious proceedings. Protocol 14 and 14bis –    Reinforcement of the court’s ability to filter out unmeritorious cases New admissibility criterion is introduced which would be able to be declared inadmissible where the applicant was not considered to have suffered significant disadvantage New measures are introduced for dealing with repetitive cases. The obvious purpose is to enable chambers and the grand chamber to establish some ground rules on the application of the criterion before smaller groupings of judges can make use of it. 14bis is concerned with the extension of the competence of single judges and the extended competence of committees in Article 14. It is only enforceable to those who have ratified it. Aimed at Russia. Supervising the Enforcement of Judgements Composition and procedure – Each of the contracting parties is entitled to one representative in the Committee of Ministers who each have one vote. Its functions include that of supervising the friendly settlements as well as judgements of the Court. The deliberation remains confidential although most information is made public. There is no formal right of access to the committee’s decision making process as regards the need for general measures. The committees voting procedure is governed by the Statute of the Council of Europe. A quorum consisting of 2/3 of the contracting parties is needed before any meeting is held. A simple majority of all contracting states and 2/3 of all those present is needed. In some cases unanimity is required. Execution of judgements – The court has the power to award just satisfaction. A monetary reward must be carried out within 3 months of the delivery of the judgement. There will be a renewed examination after the time period to ensure compliance. Individual measures may require that the victim is put in the same situation prior to the violation. Most common is the reopening of domestic proceedings. General measures are to prevent the recurrence of similar violations of the Convention. Most involve changes to legislation while others include administrative reforms, changes to court practice or HR training for the police. Role of Parliamentary Assembly – Its jurisdiction is purely consultative. Sanctions – There are a number of pressures and interests to encourage states to comply with the legal obligation to take measures of restitution created by a finding of a violation. Week Two: The Right to Life This is provided in Article 2 of the Convention    Duty to refrain from unlawful killing Duty to investigate suspicious deaths Positive obligation to take steps to prevent the avoidable loss of life Death Penalty and the Extraterritorial application to the right to life – The article itself reserves the death penalty as an exception however this was corrected in Protocol 6 and 13. It is now the policy of the Council that the death penalty be abolished by all Contracting Parties as a requirement for their admittance. Where an accused it to be extradited to a country where they would face capital punishment there will also be a violation, unless there has been an agreement that they will not face this punishment. The accused must be spared from even the threat of a deliberate killing. Prohibition of Intentional killing by the State – A State must refrain from deliberate and unjustified killing. Excessive use of force in all circumstances of a case will lead to a violation The Court will itself examine the circumstances of a killing by State officials only where there is evidence that the domestic judicial system is inadequate or unable to uncover the truth. Death in Custody and Forced Disappearance – Where an individual is known to have been takin into custody and disappears or is found dead a heavy burden is placed upon the State to prove its innocence and that it is not linked.     Deprivation of liberty Effected by Government agents or with consent Absence of information or refusal to acknowledge the deprivation of liberty or refusal to disclose the fate or whereabouts of the person Placing such persons outside the protection of the law Timurtas case Positive Obligation – A Contracting party must refrain from the intentional and unlawful taking of life but they must also take appropriate steps to safeguard the lives of those within their jurisdiction. There is thus a duty to put in place a legislative and administrative framework designed to provide effective deterrence against unlawful killing. A breach of this kind, it must be proven the State authorities knew or ought to have known at the relevant time if the established existence of a real and immediate risk to the life of an identified individual and that they had failed to take measures within the scope of their powers. It has been confirmed that a States duty extends to those in custody. The duty cannot be extended to impossible or disproportionate burden upon the authorities. Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent the risk from materialising. Where the risk arises from a legal action, the contracting party must provide and effective system of regulation, supervision and control. Information must be granted to those involved so that they may know of the risk involved in such actions. This positive obligation will extend to natural disasters but the Court notes that the burden must be reasonable, with proper judicial or administrative inquiries into alleged deficiencies which have led to the disaster. Duty to Investigate Suspicious Deaths – Any general legal prohibition of arbitrary killing of the State would be ineffective in practice in the absence of a procedure for reviewing the lawfulness of the use of lethal force by State authorities. Ramsahai case lays down the requirements of an effective investigation (must at least be adequate) and also regarded as necessary for the person responsible and must be independent from those implicated in the event. Article 2 is more interested in an official investigation leading to the establishment o criminal liability. An investigation must be carried out by someone who is independent on the basis of objective evidence. The investigation must lead to the determination whether the force was justified and to the identification of and punishment of those responsible. It must be carried out promptly and swiftly in order to maintain public confidence in the authorities, and thus to some degree be open to public scrutiny. The positive obligation to investigate, and where appropriate prosecute, require ‘promptness and reasonable expedition’. Abortion – Article 2 is silent as to the temporal limitations of the right to life and does not define everyone. Bruggemann and Scheuten case = ‘pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a woman is pregnant her private life becomes closely connected with the developing foetus’ The Court has expressed that ‘not every regulation of termination of unwanted pregnancies constitutes an interference with the right to respect for the private life of the mother’ In such a delicate area the Court allows that the contracting parties had to have a level of discretion. There is no European consensus which makes it difficult for the Court to come to a concrete decision and that it is undesirable nor possible to answer the abstract question whether an unborn child is a person for the purpose of Article 2. Euthanasia – The right to life does not include the right to die (pretty v UK). Prohibition of Torture This is provided in Article 3 of the Convention  Absolute nature (Chahal case) Defining the Terms – There must be a minimum level of severity which will apply whatever the category of conduct is at issue. This is to prevent trivial matters from appearing in the Court. The enquiries in national law must have been thorough and represent a genuine attempt to find out what happened and who may be responsible for the conduct. Administrative practice is where a State carries out the same breach continuously. At the stage of admissibility, the requirement of domestic remedies will be disregarded. On the merits, the finding of an administrative practice implying official tolerance of the pattern of conduct. Torture constitutes an aggravated and deliberate form of cruel, inhuman and degradin treatment of punishment. The distinction between torture and inhuman treatment is one of degree. Factors include:      Duration Physical and mental effects Sex Age State of health Inhuman treatment does not need to necessarily be deliberate. Although sometimes the Court does not distinguish between inhuman and degrading treatment. In some instances degrading treatment requires the presence of gross humiliation before others or being driven to act against will or conscience. The Court is contradictory in that it states that gross humiliation is not always necessary for degrading treatment. Punishment and treatment are often not subject to separate analysis. Positive Obligations –   Measures in the contracting parties which constitutes effective deterrence For an effective investigation capable of leading to prosecution of well-founded allegations of ill-treatment Investigations must be thorough, expedient and independent. Evidential Issues – The convention organs have required a very high standard of proof of the conduct, beyond reasonable doubt. There must be appropriate evidence of such conduct. The State must then offer some form of explanation. Extraterritorial effect – A contracting party may violate the obligations if its actions exposes a person to t likelihood of ill-treatment in a place outside the jurisdiction of the contracting parties. There is nothing wrong with obtaining assurance that torture will not occur where the risk is neutralised. Destruction of Homes and Possessions – Bilgin case: destruction of the applicant’s house and his possessions during operations by the security forces constituted inhuman treatment. The acts were deliberate and the operations of the security forces had been conducted with complete disregard for the safety and welfare of the applicant. Corporal Punishment – Provided it is sufficiently real and immediate, a mere threat of conduct prohibited by Article 3 may itself be in conflict with the provision. Corporal punishment which has long lasting effects and reach the threshold of severity required will violate Article 3. Acts in the Course of Arrest – The use of handcuffs in the particular circumstance must not be disproportionate to the security risk. Conditions of Detention – Must be compatible with respect for human dignity, it is important that a detained person’s health and well-being are adequately secured. In extreme cases, a convicted person’s health may make imprisonment of itself a violation of Article 3. The poor state of prison facilities in some contracting parties remains a cause for concern. Force-feeding a prisoner, where it could not be establish that this was a medical necessity supported by genuine medical opinions, has been held to constitute torture. Contracting parties have been enjoined to take special account of the vulnerability o prisoners and their inability to complain coherently about their difficulties. A complaint of a violation of Article 3 might arise out of a failure to respond promptly and effectively to a prisoner’s medical needs. EU Convention for the Prevention of Torture – Creates a monitoring mechanism in the form of a Committee which may make visits to any establishment in the territory of the Contracting parties where persons are deprived of their liberty by a public authority. The Committee has no judicial functions, but instead reports its findings and makes recommendations to the State concerned. Protection from Slavery and Forced Labour This is provided in Article 4 of the Convention. Slavery or Servitude – The distinction between the two is one of degree. Slavery connotes being wholly in the legal ownership of another person. Servitude is more limited still connoting conditions of work or service wholly outside the control of the individual. Parties are required to cooperate internationally to tackle the problem of human trafficking. There is a responsibility for monitoring the activities of the Contracting Parties. Positive Obligations – In order to take measures to suppress the problem of forced domestic labour. Forced or Compulsory Labour – The work performed must have been involuntary and the requirement to work must be unjust or oppressive or the work itself involves avoidable hardship. Prison Labour – Article 4 excludes any work required to be done in the ordinary course for detention imposed. Military Service – Article 4 excludes any service of a military character. Emergencies – This is outside the provision of Article 4 but the State must take into account the capacity for the work involved. Civic Obligations – This test is one of normality in the sense of what could reasonably be expected of a particular individual in a particular situation. The absence of any fee or reimbursement of expenses was regretted by the Court, but did not alone render the work forced or compulsory labour. Consent – Consent cannot make slavery or servitude lawful. Week Three: The Right to an Effective Remedy This is provided in Article 13 of the Convention. It is about guaranteeing a process within the national legal order by which a remedy for a violation can be provided at that level. Klass case: Article 13 is an independent provision which can be violated independently although there must be an arguable violation of a Convention right. It does not offer any guarantee of a remedy allowing a State’s primary legislation to be challenged before a national authority on the grounds that is contrary to the Convention. Arguable Complaint – Klass case: Article 6, 8 + 13 in dispute, the Court argued that it must be shown that a substantive provision had been violated before 13 came into play. The question was whether the applicant had an arguable case. In deciding there are 2 tests:   The Commission will declare that the case is manifestly ill-founded because the applicant has put forward insufficient evidence in justifying doing so Are there the makings of a prima facie case Nature of Remedies Required – The effect is to require the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under to Convention and to grant appropriate relief. Remedies don’t need to be judicial but they do need to be effective. The remedy before the national authority should concern both the determination of the claim and any redress. Where irreversible harm might ensue, it will not be sufficient that the remedies are merely as effective as they can be, but they must provide a much more certain guarantee of effectiveness. The Court is constantly indicating what constitutes effectiveness in the remedies available within the national legal order. For a long time the Court concluded that the provisions of Article 6 and 13 overlapped. This was reviewed in the Kudla case. The exercise of remedies available in the national legal order must not be unjustifiably be hindered by the acts or omissions of the authorities of the respondent State. The Court has gone as far as to suggest that only the Court proceeding would be sufficient to offer proper redress, noting the strong guarantee of independence offered by such proceedings. The nature of the right at stake has implications for the type of remedy which the State is required to provide. The remedy must be effective in practice as well as in law. Violations by persons in Official Capacity – No defence of State privilege or immunity from suit may be allowed. Article 13 is not concerned with challenges to legislation. Where the Convention has been incorporated, there will usually be some process by which the compatibility of legislation can be tested against the requirements of the Convention. Personal Liberty and Security This is provided for in Article 5 of the Convention. Deprivation of Liberty – The distinction between liberty and movement is one of degree and intensity than o substance. The Court will look at the type, duration, effects and manner of implementation of the measure in question. An unacknowledged deprivation of liberty to an individual is a complete negation of these guarantees and discloses a most grave violation. Where this occurs the State has a positive obligation to conduct an investigation to determine the case. Concept of Arbitrariness – This would arise where there is bad faith or used deception. A failure to ensure that there is some relationship between the ground of permitted deprivation of liberty and the conditions of detention will render the deprivation arbitrary. The detention must also be necessary to achieve the aim. Positive Obligations – In order to protect the liberty of its citizens. Not doing so would leave a large gap in the protection from arbitrary detention which would be inconsistent with the importance of this provision. Notification of Reasons – Any person must be told promptly and in simple language the essential factual and legal basis for the detention. This provision applies to everyone who is detained. The reasons for their detention must have been sufficiently clear to him for the purposes of this provision. Lawfulness – Anything that does not fall within one of the categories listed in the provision will be a breach of the Convention. The deprivation of liberty must also be lawful and carried out in accordance with a procedure prescribed by law. A mere procedural defect in national law will not be sufficient to constitute a failure to follow national law. The Convention requires that the national law be of a certain quality.   Clear and accessible rules governing the circumstances A procedure which must be followed Permitted Pre-Trial Detention –    Must be lawful Effected for the purpose of bringing the detainee before the competent legal authority Reasonably suspected of having committed an offence or about to commit A competent legal authority carries the same meaning as a judge or other officer authorised by law to exercise judicial power. There must be facts and information which would satisfy an objective observer. Any person has the right to be brought promptly before a judge or other officer. It is the duty of a contracting party on its own initiative to see that this is done. The Court has never put a finite limit on the acceptable length of preliminary detention as this must depend on the circumstances in each case. When assessing independence, the appearance of the situation from the viewpoint of an outside observer is decisive. Those kept in detention must be brought to trail within a reasonable time with a reasonable presumption in favour of release. The initial arrest and continuing detention must be justified on adequate grounds and the duration must not exceed a reasonable time. Reasonableness will be determined in the circumstances of the case.   Grounds relied upon by national authorities were adequate to justify remanding the accused in custody Examine the conduct of the prosecution to ensure that pre-trial detention was not unnecessarily prolonged Remaining Permitted Grounds of Detention – The detention must be lawful, not the conviction. The lawfulness of detention ends when the term of imprisonment to which the person has been sentenced finishes. An arrest to secure attendance in Court following a failure to comply with summons will be permitted. The age at which a person ceases to be a minor has not been definitely established. Detention might be justified on grounds of social protection and here there is no requirement that the detention be carried out by a Court, but also by an administrative authority. Vagrancy is the detention for their previous rather than present condition, so there will be no obvious trigger for release. Mental illness:    Presence of an unsound mind must be determined by objective medical evidence The mental illness must result in a condition making detention necessary for the protection of the patients and others There must be a relation between the grounds of detention and he place an conditions of detentions Even where evidence shows that the detained person is no longer suffering from mental illness, it does not automatically mean that they should immediately and unconditionally be released into the community. The term alcoholic carries an autonomous meaning. It includes those who are intoxicated who pose a danger to themselves and those around them, not just those who are addicted. The detention of a person with an infectious disease must pose a certain level of risk and it must be of last resort. A Contracting Party can detain an asylum seeker until that person’s entry has been authorised. However the detention must remain compatible with the purposes of the Convention and not be arbitrary. In the absence of any procedural irregularity or official arbitrariness such as to render the detention unlawful, the applicant must show that part of his detention he was not the object of deportation or extradition action. Legality of the Detention – The right to judicial review covers all forms of arrest and detention. The Court does not have to be a Court in the traditional sense but a body of a judicial character offering certain procedural guarantees. The Court must be empowered to examine whether or not there is sufficient evidence to give rise to a reasonable suspicion that they have committed an offence. The operation of the system must not leave a detainee in the position of being unable to challenge the allegations against them because the open material was of such a general nature that it lacked sufficient specificity to enable this to be done. The opportunity to legal review must be provided soon after the person is taken into detention and the review proceedings must be conducted with due diligence. Enforceable Right to Compensation – Any breach of Article 5 in the absence of an enforceable right to compensation under national law, will give rise to an obligation of the Courts to offer and enforceable right to compensation. Right to a Fair Trial in Civil and Criminal Cases This is provided in Article 6 of the Convention. Scope – The Court has no jurisdiction to reopen national legal proceedings or to substitute its own findings of facts or the application of national law to them, for the conclusion of national courts. It must examine as a whole, the national procedure. A finding of the Court does not have the effect of quashing the conviction or overturning the judgement. The Court calls this the fourth instance but it is not to be seen as the fourth instance. A criminal charge bears an autonomous meaning, independent of the categories employed within the national legal orders. It is possible to achieve uniformity of approach throughout Europe and prevent States from avoiding Convention controls by classifying offences as disciplinary, administrative or civil matters.    Classification of proceedings under national law Essential nature of the offence Nature and degree of severity of the penalty could be imposed having regard in particular to any loss of liberty Article 6 will apply from the time that a person is charged with a criminal offence. The object is to protect a person throughout the criminal process, it is necessary to find a criterion for the opening of criminal proceedings which is independent of the actual development of the procedure in a specific case. The right or obligation must exist under national law and it must be civil in nature. This cannot however be answered solely by reference to the way in which it is viewed under the national law of the respondent State and must have an autonomous meaning under the Convention. The Court prefers to answer on a case by case basis. Disputes about access to electronic documentation does not fall in this scope. There must be a dispute concerning the particular rights or obligations. Article 6 applies all stages of legal proceeding for the determination of civil rights and obligations, not excluding stages subsequent to judgement on the merits. Right of Access to Courts – Golder case = the detailed fair trial guarantees under Article 6 would be useless if it were impossible to start court proceedings in the first place. The right however is not absolute, it is open to States to impose restrictions on would-be litigants. The right to bring a claim to Court applies only in respect of rights provided for by the national law, it is not possible through Article 6 to challenge the substantive content of national law. There is no right under Article 6 to have criminal proceedings brought against a suspected offender. Where an appeal procedure is already provided for in national law then it must comply with Article 6. Effectiveness of Court Proceedings – Once a civil judgement or a criminal acquittal has become final and binding, there should be no risk of it being overturned. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character. Requirements – Compliance with specific rights set out in Article 6 will not alone guarantee that there has been a fair trial. There must be an equality of arms, which requires a fair balance between the parties and applies to both civil and criminal cases. Parties must be afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage. There is also the right to have an adversarial trial. This means having the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party. The relevant material must be available to both parties. The entitlement to disclosure of relevant evidence is not an absolute right, the can be competing factors. A reasoned decision while not expressly required is implicit in the requirement of a fair hearing which has been recognised by the Court. It will depend on the nature of the proceedings whether a failure to allow the individual accused or civil litigant to attend in person will constitute a violation. In addition to this, the applicant must be able to participate in the proceedings. Specific Requirements – There cannot be a fair criminal or civil trial before a Court which is or appears to be biased against a defendant or litigant. A fair trial will be meaningless if a decision is liable to be overturned. A judge’s lack of bias is presumed unless there is evidence to the contrary. The requirements of independence and impartiality apply equally in civil cases. Publicity is seen as one of the guarantees of a fair trial. It offers protection against arbitrary decisions and builds confidence by allowing the public to see justice being administered. It is also provided that there be a public pronouncement of the judgement. Sates enjoy a discretion as to the manner in which judgements would be made public. The form of publicity is to be given to a judgement has to be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6. Having a reasonable time limit is to protect the applicant from the stress of uncertainty and to ensure that justice is administered without delay which could jeopardise effectiveness and credibility. Reasonableness is assessed in the light of the circumstances of the case. Extraterritorial Effect – This is limited to the criminal sphere. Waiving Rights – It is possible to waive some but not all rights under Article 6. Week Four: Right to Respect for Private Life and Family Life and the Right to Marry Limitation Common to Articles 8-11 – The principle that only the restrictions expressly provided by the Convention are allowed has not always been accepted. However, the Commissions doctrine that certain restrictions are an inherent feature of detention has been disproven by the Court in the Vagrancy case. The current position is that nay limitation on the rights guaranteed must be justified under the provisions. Express Limitations –   Only the restrictions expressly authorised by the Convention are allowed Restricted permitted under the Convention to the rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed The requirement of justification enables the Court to control the alleged interference by reference to those express provisions. Exceptions are adapted with a narrow interpretation.  Determines whether the interference is in accordance with, or prescribed by law   Whether the aim of the limitation is legitimate in that it fits one of the particular article Whether the limitation is all circumstances necessary in a democratic society Central to this is the proportionality of the interference in securing the legitimate aim. The interests of society as a whole override the interests of the individual. Required Legal Basis for the Interference –    The interference with the Convention right has some basis in national law The law must be accessible The law must be formulated in such a way that a person can foresee to a degree that is reasonable in the circumstances, the consequences which a given action will entail Specified Legitimate Aims – The justifications set out in the Convention provisions are exhaustive but also comprehensive in the range of interests which may be brought into play.           National Security Territorial Integrity Interests of Public Safety For the Economic Well-being of the Country Prevention of Disorder or Crime Protection of Health and Morals Protection of the Reputation of Others Protection of the Rights and Freedoms of Others Prevention of the Disclosure of Information received in Confidence Maintaining the Authority and Impartiality of the Judiciary Limitation must be necessary in a Democratic Society – This involves showing that there was a pressing social need. The margin of appreciation is indeterminate and its application difficult to predict. It is often the case that a wider margin is granted when the State has a positive obligation. Protecting Family Life This is provided in Article 8 of the Convention. Article 12 is also relevant in this matter. Defining Family Life – The existence of family life is a question of fact. There is a hierarchy of relationships under this provision. Positive Obligations and Family Life – The Court applies an interpretation which gives effect to the continuing evolution of concepts of privacy and family life.   Action to secure respect for the rights included in the Article, distinct from simply refraining from interfering with the rights A duty arises for a Contracting Party to protect an individual from interferences by other individuals Custody, Access and Care Proceedings – State authorities are obligated to balance a number of rights which may compete or conflict with each other. The Court in these situations reviews the national decision, looking whether the reasons given were relevant and sufficient and that the procedure was fair. The State will enjoy a wide margin of appreciation. Family Life of Prisoners – This is frequently rejected on the grounds that it is necessary for the prevention of crime. The Right to Marry and Found a Family – Limitations on this will be found in national law and not in the Convention provisions themselves. Restrictions must be for a legitimate purpose and must not go beyond reasonable limit to attain that purpose. There is no right to divorce. Protecting Private Life, the Home, and Correspondence Positive Obligations – There is a considerable margin of appreciation for the State under Article 8. There is a fine line between positive and negative obligations in this case. Freedom from Interference – A search which is authorised in national law can still violate the Convention if the underlying purpose is unjust. The storing of information concerning a person’s private life in a secret police register interferes with the right to respect for private life. Collection, Storage and use of Personal Information – The collection of information by officials will require the consent of the person in dispute otherwise there will be a violation. Where national security is involved the State will have a large margin of appreciation. In serious cases the Contracting Parties will have the positive obligation to disclose a person’s identity which may have otherwise be regarded as confidential matter. Freedom to Develop One’s Identity – There is no explicit right of access to case records and a refusal of complete access is not considered as a breach, but the State must remain within their margin of appreciation of all competing rights. Immigration Issues – The notion of the core family was introduced here. Article 8 can also be engaged when steps are taken to prevent someone from leaving the Country. Health and Medical Procedures – The Convention will cover procedures that the applicant has not consented to, but this often falls to another right. Protection of one’s Living Environment – There must be a harmful effect on their private life or family sphere. Protection of the Home – Only certain aspects of private life will fall here. Any action taken must be proportionate to the legitimate aim of the national legislation. Prisoners’ Correspondence – They may be stopped or intercepted. It can be justified as being necessary in order to prevent further crimes occurring. But the right must still be protected to the highest degree possible in the circumstances. Week Five: Freedom of Thought, Conscience, Religion, Expression and Association Freedom of Thought, Conscience and Religion – This is provided for under Article 9 of the Convention. The Convention organs allow Contracting Parties a wide margin of appreciation with placing limitations on the manifestation of religion and belief. Scope – A belief must attain a certain level of cogency, seriousness, cohesion and importanc Competing groups must be tolerated. Religious beliefs that do not respect the rule of law, human rights and democracy will not fall within the protection of Article 9. A legal person will be unable to derive rights from Article 9. In 1979 the Commission reversed this and concluded that an association with religious or philosophical objects could exercise the right to manifest religion under this provision. Manifestation of Religion or Belief – These rights are absolute but limitations are provided for in the Article itself. Restriction must be within the guidelines of the law and have an identifiable legal basis and be sufficiently clear. Compliance with dietary laws is another aspect if the manifestation. Manifestation by Prisoners – The Commission has stated that a refusal by the prison authorities to provide special food required by a religion which was not normally a religion practised in that State will be permitted in Article 9. The Commission has, case-law wise, been largely unsympathetic to complaints of interferences involving prisoners. Conscientious Objection to Military Service – Contracting Parties are not obliged under Article 9 to recognise a right to conscientious objection. Participation in National Life – A Contracting Party cannot impose obligations on citizens in relation to participation in national life which offend their religious beliefs, unless the obligations are necessary in a democratic society. Recognition and Authorisation of Religious Organisations – Serious and unexplained delays in granting recognition to a religious association under national law will constitute a violation. Non-recognition by the State does not deprive adherents of that religion from the protection of Article 9. Positive Obligations – States must ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of those beliefs and doctrines. There is a responsibility to ensure tolerance between the rival factions between and within religious groups. Freedom of Expression This is provided for in Article 10 of the Convention. All expressions are included through any medium. However, it carried with it special duties and responsibilities. Interference with Free Expression – Penalties, restrictions, conditions and formalities must be justified. Limitations – Certain restrictions are expressly allowed in the provision itself. The margin of appreciation allowed will vary depending on the purpose and nature of the limitation and of the expression in question. Restraints will require certain safe-guards against their misuse. Incitement to Violence and Hate Speech – A statement is less likely to be interpreted as an incitement to violence if it is reported to a well-informed audience as part of a pluralistic debate. Boundaries of permissible criticism are wider with the government that in relation to private citizens or even a politician. The Press – They must not overstep certain bounds but they have a duty to impart information and ideas on all matters of public interest. Penalties will require a very strong justification. Conflict with the Right to Privacy – The Court draws a fundamental distinction between the reporting of facts capable of contributing to a debate in a democratic society and the reporting of an individual’s private life. The Court must establish a fair balance has been struck between the two conflicting rights. Severity of any Penalty – There are some situations where any penalty, no matter how light, will violate Article 10. Confidential Information – Article 10 does not confer a right of access to information. But it will be a violation for a Contracting Party to refuse to grant access to documents once a national court has made an order for this to happen. Whistle-Blowers – State employees have a duty of discretion. Restrictive measures must be proportionate.   Level of public interest in the disclosed information and whether this overrides the confidentiality of the information Authenticity of the information which is disclosed It must be shown that they were acting in good faith. Obscenity and Blasphemy – There is no European concept of morality. Contracting Parties have a wide margin appreciation in order to protect moral standards. Advertisements – This may sometimes be restricted to prevent unfair competition and untruthful or misleading advertising. There will be a wide margin of appreciation. Broadcasting – A Contracting Party must take care not to infringe the right of a person to receive information. Freedom of Assembly and Association This is provided for in Article 11 in the Convention. Positive Obligations – It applies to both fields. Peaceful Protest – The Court will determine whether the protest and those involved had violent intentions based on the evidence presented before it. There is no immunity from prosecution for unlawful actions during the course of the demonstration.     Activity must be politically participative The protest is directed towards a body that is capable of implementing or preventing the change The subject matter of the protest must transcend the individual The protest runs alongside and outside formal political party structures There is no prohibition on Contracting Parties requiring authorisation for, or, notification of demonstrations. Obstructive direct action always runs the risk of involving some unlawful activity on the part of the protesters. A Contracting Party is permitted to regulate peaceful assembly in a manner which facilitates it, this includes a positive obligation. Defining Associations – This constitutes the right to choose whether or not to form and join associations such as political parties and trade unions etc. Citizens should be able to create a legal entity in order to act collectively in a field of mutual interest. Registration – Any decision to refuse registration will be an interference with the freedom of association which will require justification. National law regarding registration must be clear in order to comply with the lawfulness requirement under Article 11. Political Parties – The Court upholds pluralism as being at the heart of the concept of democracy which is upholds. Other Associations – Includes rights aimed at creating and preserving genuine democracy and freedom in a vast array of interests. Only convincing and compelling reasons can justify restrictions on freedom of association. Trade Unions – There is a positive obligation on the State to protect, through legislation, the union rights of workers in the private sector, as well as those employed by the State. There is a wide margin of appreciation for Contracting Parties to decide to what extent unions should be recognised and protected under national law. Restrictions on Particular Groups of Workers – Lawfulness requires conformity with domestic law and that it must be accessible, certain and not arbitrary. The Court has held that it is permissible for a Contracting Party to restrict the political activity of local government officials. Week Six: The Prohibition of Discrimination This is provided in Article 14 of the Convention. Positive Obligations – There is a requirement for the allegation of discrimination to fall within the ambit of one of the substantive rights of the Convention. The justification of the differential treatment must meet a legitimate aim and there must be a reasonable relationship of proportionality between the aim and its realisation. Parties must take steps to prevent discrimination. Contracting Parties enjoy a considerable margin of appreciation. Conceptual Issues – A breach of Article 14 does not pre-suppose the violation of the rights guaranteed by other Articles. There is a very general nature of the Article. The right of appeal is outside the scope of the Convention whether in civil or criminal cases. Differential treatment is justified if it has an objective aim, derived from the public interest and if the measures of differentiation do not exceed a reasonable relation to that aim. Another, stronger, thesis is that differential treatment is justified only if, without regard to the purpose of the measure in question, the facts themselves require or permit differential treatment. Court’s Methodology – Sometimes the Court does not consider the additional complaint concerning discrimination because its response to the complaint under the substantive question would constitut reasonable and objective justification in relation to discrimination. Scope – There is no requirement that there is an actual breach of another Convention right. The Court generally takes a broad approach as to whether a claim falls within the ambit of one of the substantive articles, and this can become confusing about the outer limits of the operation of a particular article. Listed – The list of prohibited grounds is not exhaustive but ‘other status’ is prohibited. For this to be prohibited the difference in treatment has to be based on a personal characteristic by which persons or groups of persons are distinguishable from each other. Compare themselves – The Court asks whether the situation is a similar situation or in relatively similar situation. This enables the Court to determine a less favourable treatment. The situation must be analogous in all material respects so that it can properly be concluded. Objective and Reasonable Justification – A State must show the nature of the legitimate aim it is pursuing but also convincing evidence the link between the legitimate aim pursued and the differential treatment challenged by the applicant. The margin of appreciation will vary according to the circumstances. Certain grounds of discrimination are inherently suspect and will be subject to particularly careful scrutiny. Discrimination and Minorities – There is recognition that minorities need special and collective protection if their human rights are to be respected. Burden of Proof – The applicant has to prove that there has been a difference of treatment and then respondent State has to prove that the difference in treatment can be justified. Protocol 12 – Adds a general prohibition of discrimination to the prohibition of discrimination in relation to rights within the ambit of the Convention. It is more focussed on the recognition of a right of equality.