18 Regional human rights systems- Europe – I

Prof. Nitin Gomber

Introduction

As has been discussed all throughout in earlier modules, there is no hierarchical order or a set constitution in the international arena from which the law flows. The international human rights law is no different. In fact, international human rights law consists of multiple layers ñ (a) the global system, which is micro-managed by the United Nations, (b) the domestic system, which is micro-managed by each State, (c) regional systems which are micro-managed by each region. It is this third layer that this module is going to deal with.

These regional human rights systems consisting of regional instruments and mechanisms, play an important role in the promotion and protection of human rights. These systems help to localise international human rights norms and standards, reflecting the particular human rights concerns of the region. Its existence is paramount for the following reasons, among others: (a) the local needs and aspirations of people are more likely to be met by way of these regional instruments, (b) some regions collectively may want to commit to hight human rights standards that could possibly be agreed to under the auspices of the United Nations, (c) global enforcement mechanisms may prove futile and a region may want stronger monitoring and enforcement mechanisms, such as regional courts and commissions, (d) it is likely to comfort regions with the whole concept of human rights, given that some of these regions are vary that human rights is in fact only a western notion.

Currently, the three most well-established regional human rights systems exist in the Americas, Europe and Africa. Having said that, there are other regional systems that are still in their infancy, however, they do require a mention. Accordingly, we will be studying the human rights systems in the America, Europe and Africa in greater detail in the following chapter.

Learning Outcomes

• Students will learn about the regional system of human rights that is prevalent in Europe.
• Students will assess if the criticism of the Arab world against these instruments is a valid one.
•  Students will grasp the interpretation of human rights as is prevalent in these systems.

Regional human rights system in Europe

The Council of Europe (CoE) is a regional inter-governmental organisation which promotes human rights, democracy and the rule of law in its member states. The organisation is separate from the European Union, which is a politico-economic union. The Council of Europe established the European Convention on Human Rights and Fundamental Freedoms, which entered into force in 1953, and is the main European human rights convention. It is popularly known as ëEuropean Convention on Human Rightsí or simply ëECHRí. The said Convention was drafted by the Council of Europe after the Second World War and was designed to protect individualsí fundamental rights and freedoms. Accordingly, it deals with a lot many civil and political rights, and is in that sense similar to the ICCPR. It must also be pointed out that several additional Protocols have added to its substantive and procedural provisions. Let us now have a look at some of the primary provisions of ECHR.

European Convention on Human Rights

The ECHR consists of three parts. The main rights and freedoms are contained in the first part, which consists of Articles 1 to 18. The second part consists of Articles 19 to 51, which sets up the European Court of Human Rights and its rules of operation. Finally, the third part gives out some miscellaneous provisions dealing with rules overall and not falling within the ambit of either part one or part two.

European Court of Human Rights

The machinery for enforcement of human rights under the ECHR is the most developed in Europe and in fact some scholars refer to it as one of the most efficient human rights systems in the world. By Protocol 11 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, a single permanent Court called the European Court of Human Rights was established in order to maintain and improve the efficiency of protection of human rights and fundamental freedoms.

In fact, the previous mechanism composed of the European Commission on Human Rights and the European Court of Human Rights was abolished only after Protocol 11 took effect. In this previous classical format, once someone had pursued all avenues to have their rights vindicated by the legal system of the country where they find themselves, they could approach the European Commission on Human Rights. The commission then would give the State an opportunity to respond, and then decide whether there has been a violation. This decision did not, however, by itself carry the force of law. To obtain such a result, the case had to proceed to the European Court of Human Rights, where legally binding decisions were issued on whether a state party has violated the treaty.

The European Court of Human Rights is a judicial body composed of a number of judges equal to the number of states that are current members of the Council of Europe. Judges are elected by the Parliamentary Assembly of the Council of Europe for a term of six years. In this regard, it is also important to note that judges are required to sit on the Court in their individual capacity only. More so, to consider cases brought before it, the Court sits in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges.

There are two main stages in consideration of cases brought before the Court: the admissibility stage and the merits stage. The processing of an application goes through these phases. A Committee finding that an application is not admissible will declare the case inadmissible, by a unanimous vote, and its decision cannot be appealed against. If however, no decision is taken by the Committee on admissibility, a Chamber shall decide on its admissibility. If however, the application is found admissible, a Chamber will give notice of the case to the respondent Government for their observations. Written observations are submitted by both parties. Ultimately, the Chamber delivers a judgment that will become final only after the expiry of a three-month period during which the applicant or Government may request the referral of the case to the Grand Chamber for fresh consideration. The Grand Chamber only accepts these requests if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance. The judgment of the Grand Chamber shall be final, however.

Enforcement Mechanism

The European Court of Human Rights may receive applications from any person (including group of individuals) who claims to be a victim of a violation by one of the State party to the ECHR. The only admissibility criteria for hearing such applications are: (a) all domestic remedies must have been exhausted, (b) the application to the ECHR must have been filed within six months from the date on which the decision in point (a) would have been taken, (c) the application must not be anonymous,

(d)  the application must not contain a substantially same matter as has already been examined by the Court already, and (e) the application must not have been submitted to another procedure of international investigation or settlement and contains no relevant new information.

Furthermore, the State partyís to the Convention in fact undertake to abide by the final judgment of the Court in any case to which they are parties. In any event, however, the concerned State does not abide by the decision, the Court transmits its judgement to the Committee of Ministers which further supervises its execution. The Committee of Ministers is the Council of Europeís decision-making body, which comprises of the Foreign Affairs Ministers of all the member states, or their permanent diplomatic representatives. The Committeeís work is carried out mainly at four regular meetings every year, which takes the shape of ëAnnotated Order of Businessí. The Committee completes each case by adopting a final resolution, which is made public.

Landmark judgments by the European Court of Human Rights

Since 1998 it has sat as a full-time court and individuals can apply to it directly. Since its inception, the Court has delivered more than 16,000 judgments. These are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The most violated provision of the European Convention is Article 6 which speaks of the right to a fair trial, then the reasonable time requirement. The next most frequent violations are under Article 1 of Protocol No. 1 (protection of property) and Article 5 of the Convention (right to liberty and security). Apart from ruling on these violations, the Court has most frequently given judgments on abortion, assisted suicide, body searches, domestic slavery, adoption by homosexuals, wearing religious symbols at school, the recognition of transsexuals, the protection of journalistsí sources and even environmental issues.

Gurguchiani v. Spain (15 December 2009)

Gurguchiani, the applicant, was sentenced to eighteen months imprisonment for an attempted house burglary in 2002 and was later released on licence. However, his conviction was upheld and appeal petition dismissed by the Constitutional Court. In the meantime, the Spain police authorities requested the judge responsible for the enforcement of the judgment against the applicant to issue directions for the applicantís removal from the country in accordance with the applicable enforcement procedure. This request was accompanied by the 2002 order of a regional arm of central government which ordered the administrative removal of the applicant according to Institutional Law of 2000, a Georgian citizen living illegally in Spain. Later when the matter went to the criminal court, it found it more appropriate to impose sentence. But the appellate court accepted the Prosecutorís contention to deport the applicant from Spain and additionally imposed a ten-year ban on his re-entry. According to the domestic criminal laws applicable where an illegal immigrant in Spain was given a prison sentence of up to six years, there was an obligation to replace that sentence by deportation, save in exceptional cases. The Court held that the replacement of the applicantís eighteen-month prison sentence by his deportation and ten-year exclusion from Spain, without allowing him to appear before the court and without taking into account any circumstances, had to be regarded as a sentence in the same sense as that originally imposed. A heavier penalty was imposed on him with a retrospective effect. Therefore, the Court found Spain violating Article 7 when Gurguchiani was given a harsher sentence than that which had originally been provided for in respect of the offence for which he was convicted.

Salduz v. Turkey (27 November 2008)

Turkish law provided for access to a lawyer for any accused as soon as he is taken into custody unless was charged for an offence falling within the jurisdiction of the state security courts. The applicant, a minor, was arrested on suspicion of aiding and abetting an illegal organization, an offence triable by the state security courts and he gave an admission statement to the police about his participation in the unlawful demonstration. This statement was made without a lawyer being present. Later, before the investigating judge he retracted from the statement as taken by duress from where he was remanded to custody and allowed to access a lawyer. Even at trial, he continued to deny his statement but the court held his initial police confession to be reliable and punished him with a thirty-month imprisonment.

Under Article 6 & 1 for a fair trial to remain sufficiently practical and effective, access to a lawyer had to be provided, as a rule, from the first police interview of a suspect, unless it could be demonstrated that in the particular circumstances there were compelling reasons to restrict that right. In the given case, denial of access to a lawyer on the pretext of offence falling within jurisdiction of state security courts was found unjustifiable. Applicantís age was also an important point for the Court to arrive at a decision against Turkey. Therefore, the Court found Turkish authorities in violation of Article 6 (right to a fair trial) when the applicant was charged and convicted for a statement admitting guilt while in custody, without a lawyer.

Schwabe and M.G. v. Germany (1st December 2011)

The German authorities detained two men for five days to prevent them from participating in demonstrations against the G8 summit of Heads of State and Government held in Heiligendamm near Rostock, Germany. They were arrested when , the police found banners bearing the inscription freedom to all prisonersî and free all now from their van while checking. The District Court and the Appellate Court found that with their banners the applicants had intended to incite others to free prisoners from Waldeck prison and ordered their detention. Even though no criminal proceedings were initiated against them.

The Court was therefore not convinced that the applicants continuing detention could have reasonably been considered necessary to prevent them from committing a sufficiently concrete and specific offence. Nor could it have been justified under Article 5 (b) ìin order to secure the fulfilment of any obligation prescribed by lawî since the police had not ordered them to report to a police station in their town of residence or prohibited them from entering the area in which the summit-related demonstrations were to take place. Therefore, the Court held German authorities responsible for violating of Article 5 ß 1 (right to liberty and security). Also, their detention for the entire duration of the G8†summit (almost 60 days) without finding any concrete evidence of violent intentions was held to be a violation of Article 11 (freedom of assembly and association).

Conclusion

We learnt in this module that the Council of Europe established the European Convention on Human Rights which is the supreme convention in Europe protecting individuals’ fundamental rights and freedoms. The Convention sets up the European Court of Human Rights that has effectively given decisions in a lot of cases, as discussed in this module and the following chapter.

Reference

1. Leading Cases – ECHR, Venice Commission, Council of Europe
2. Internet: case-law of the European Court of Human Rights, Council of Europe
3. The European Court of Human Rights and Its Recent Case Law, Jean-Paul Costa