The Interplay Of The Rule Of Law And The ECTHR

The Interplay Of The Rule Of Law And The ECTHR Presented by: Dr. PRTENJAČA Date: 11 – 12 January 2025 ECtHR and Rule of Law- Principles and Impact - ECtHR is pivotal in the intersection of human rights and the rule of law - ECtHR aligns with democratic ideals - ECtHR's approach to a law includes rule of law elements - Ensures legal certainty, equality before the law, legality, due process, and respect for the role of national authorities - Emphasizes the protection of human rights, reflecting commitment to justice, equality, and prevention of arbitrary power - Fosters broader acceptance of judicial control over human rights matters - ECtHR's authority relies on member states' acceptance - Balances supervision demand with legal development, prioritizing cooperation over assertion - Balance between active review and the primary role of national courts - Utilizes mechanisms like jura novit curia and reviews the quality of national law - ECtHR ensures effective human rights protection within diverse legal systems - Upholds principles of the rule of law in its operations Legality in ECtHR's Rule of Law - Legality, a fundamental aspect of the rule of law, - importance within the ECtHR's case law, especially in its interpretation of the European Convention on Human Rights (ECHR) - Legality ensures the security of individuals' rights from arbitrary state interference, promoting autonomy and planning in people's lives the ECtHR's scrutiny of legality goes beyond the mere existence of national law; it assesses the quality of the law concerning Convention rights - Legality acts as a check on government power, preventing states from using procedural rules to evade scrutiny, and supports effective human rights protection - Legality involves two key aspects: • The existence of national law and • Its quality, measured through accessibility, foreseeability, and judicial safeguards; - Lauc-manner, quality of the law, and stability of the law - 1. The Rule of Law- by Law and not by men - 2. Formalistic approach/substantive - 3. ECtHR- substantive approach - 4. Legality: • Existence of the law • Quality of the Law:  Accessibly  Foreseeability Accessibility-_in ECtHR Evaluation of National Law - Accessibility is a crucial aspect in the ECtHR's evaluation of the quality of national law • a) Groppera Radio Ag v. Switzerland (no violation of Art. 10. and 13).  In Groppera Radio Ag and others v. Switzerland, highly technical law for specialists  ECtHR ruled accessibility satisfied even without publication, considering the exceptional nature of the case - Accessibility does not necessarily demand publication, according to the ECtHRexamination of circumstances in each case to determine sufficiency - Adequate accessibility means individuals affected must be sufficiently aware of the contents of specific legislation or administrative practices- Accessibility test is less rigorous for professionals and technical areas of the law, and concerned individuals must be sufficiently aware of their contents - Lower rank instructions and administrative practices may be relevant to evaluate the quality of the law - ECtHR's assessment of national law considers the critical aspect of accessibility, ensuring awareness among affected individuals, even if not necessarily through formal publication - The principle is flexible and varies based on specific circumstances and the nature of the law Accessibility- in ECtHR Evaluation of Customary International Law - ECtHR considers accessibility when customary rules of international law are at stake - In Kononov v. Latvia (no. Violation of Art. 7/prohibition of retroactivity-foreseeabilityhe could not reasonably have foreseen that he would one day be classified as a "representative of the Soviet occupying forces", para 36.),** the ECtHR found the applicant, a former member of the Soviet army, expected to be aware of fundamental customary rules of jus in bello - Lack of publication of international laws and customs of war did not affect the ECtHR's decision in Kononov v. Latvia - The Grand Chamber emphasized that, as a commanding military officer, the applicant should have been aware of the unlawfulness of ill-treatment and killing of civilians under the laws and customs of war - Emphasis on awareness - ECtHR evaluates accessibility carefully, considering the specific circumstances of each case - The ECtHR underscores the importance of accessibility in the context of customary international law, as demonstrated in the Kononov v. Latvia case- the Court considers the awareness of individuals involved, especially when evaluating the unlawfulness of actions under international laws and customs of war - the principle of accessibility remains a key consideration in upholding the rule of law Foreseeability- The Law Should Strike A Balance Between CLARITY And FLEXIBILITY; Be Detail - Clarity - 'in accordance with the law' • Interesting when secrete surveillance is in question- • Interesting case Big Brother Watch and others v. UK (violation Art. 8. and 10.) • It can not be foreseeable in the stricto sensu-but must exist clear, detailed rule on secret surveillance measures (para. 333 BBW v. UK), and domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to restore such measures • The law must indicate the scope of any discretion of the competent authorities and the manner of its exercise not to be arbitrary interference Interpretation of "In Accordance with the Law" - Compliance with Domestic Law • The expression "in accordance with the law" requires adherence to domestic law • - - Domestic laws must authorize and regulate secret surveillance measures Quality of the Law: • Beyond mere compliance, the quality of the law is assessed • The law must be compatible with the principles of the rule of law The phrase "in accordance with the law" not only requires compliance with domestic law but demands adherence to the rule of law principles, ensuring the quality and compatibility of laws authorizing secret surveillance Rule of Law Requirements for Secret Surveillance: - Laws authorizing secret surveillance must be clear and detailed - Ensuring legal clarity prevents arbitrary interference and protects individuals' right to privacy and freedom of expression - Laws should align with human rights principles, particularly the right to privacy and freedom of expression - Domestic laws must provide citizens with an adequate indication of when and how secret surveillance measures may be employed - The manner of exercising discretion in secret surveillance should avoid arbitrary interference - The law must indicate the scope of any discretion held by competent authorities - Citizens should have a clear understanding of when and under what conditions public authorities are empowered to use secret surveillance measures Big Brother Watch and others vs. UK - Articles Violated: Article 8 (Right to Privacy) and Article 10 (Freedom of Expression) by the UK authorities - - Principle of Foreseeability (Para. 333 BBW v. UK): • Secret surveillance measures must adhere to the principle of foreseeability • No strict foreseeability, but a clear, detailed rule is required Adequate Indication to Citizens - domestic law must give citizens an adequate indication of the circumstances and conditions for implementing secret surveillance measures - ECtHR Assertion in Big Brother Watch and others v. UK: - Variability of "Foreseeability, - in the context of secret surveillance, "foreseeability” takes on a nuanced meaning - Big Brother Watch Case Significance - ECtHR Emphasis - the ECtHR's emphasis in Big Brother Watch v. UK underscores the need for legal clarity and rule of law principles in secret surveillance ECtHR Control Mechanisms - Objective- ensure effective implementation and enforcement of ECtHR judgments by member states - - - Key Players: • ECtHR • Committee of Ministers Commitment to Human Rights • Collective commitment of Council of Europe member states • Control mechanisms uphold human rights standards Committee of Ministers' Role • Political entity representing member states - - • Oversees execution of ECtHR judgments • Active engagement in discussions, resolutions, and recommendations Supervision of Execution • ECtHR forwards cases to the Committee of Ministers • 'Supervision of execution' process for judgment implementation • Involves general and individual measures to address violations • Interaction with stakeholders: national authorities, NGOs, NHRIS • Adoption of resolutions reflecting progress and issuing recommendations Thematic Meetings: • Committee of Ministers holds meetings dedicated to judgment execution • Comprehensive examination of implementation efforts and challenges • Decisions contribute to effective control mechanisms and human rights protection - Additional ECtHR Mechanisms • Rule 39- interim measures to prevent irreparable harm • Friendly settlements - alternative dispute resolution for amicable solutions • Pilot judgments - address systemic deficiencies; Committee of Ministers ensures consistency - Transparency and Accountability • Publication of ECtHR judgments mandated for member states • Illuminates cases requiring remediation and fosters public accountability Overview of ECtHR Sanctions - Role of Sanctions- crucial within ECtHR control mechanisms to uphold justice, fairness, and the rule of law in Council of Europe member states - Just satisfaction serves as a key sanction to enforce ECtHR judgments and decisions - ECtHR's role as a guardian of human rights in Europe emphasizes the significance of these mechanisms Components of Just Satisfaction Awards - Pecuniary Damage • Objective: Restore applicant to the pre-violation position • Causal Link: Applicant's responsibility to establish • ECtHR Award: Full calculated amount or estimate if precise calculation is not possible - - Non-Pecuniary Damage • Compensation for mental or physical suffering • ECtHR determines amount equitably based on internal principles Costs and Expenses • Reimbursement of necessary and unavoidable costs by ECtHR • Examples- legal assistance, registration/translation fees, travel/subsistence • Requirements- prior authorization, direct relation to violations, genuine incurred costs - Documentation and Reasonableness: • Documentation is required for genuine costs • Deduction of funds received from domestic authorities or the Council of Europe • Reasonableness determined through comparisons, case law, and violation category Conclusion - The ECtHR, through its role in human rights protection, strikes a delicate balance, incorporating rule of law principles to ensure justice, equality, and legal certainty across diverse legal landscapes - Collective orchestration of mechanisms bridges ideals to tangible human rights protection and manifests the commitment to preserving dignity and freedoms across Europe - ECtHR's framework for just satisfaction awards emphasizes fairness considers the unique context of each case and upholds human rights primeless across Europe through effective control mechanisms and sanctions