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Home Human Rights Archive for category "European Convention on Human Rights" (Page 21)

Who Uses the European Court of Human Rights, and Who Wins? Evidence from New Studies

Published on July 27, 2009        Author: 

Gabriel Swain is Research Associate, School of Social Policy, Sociology and Social Research, University of Kent.  Previously, he worked as a researcher for the Council of State Governments, a US-based public policy think tank, where he wrote on topics including climate change, natural resource policy, energy policy and federalism.

The margin of appreciation doctrine of European Court of Human Rights (ECtHR) gives states flexibility in their interpretation of the European Convention on Human Rights (the Convention). States also have the freedom to decide how they implement judgments finding violations against them. This means that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECTHR and domestic human rights actors (both governmental and non) in CoE member states.

 Our research initially focused on the protection of the core civil liberties (i.e. ECtHR Articles 8-11 & 14: right to private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association; freedom from discrimination), but was expanded to include any situation in which an individual’s inclusion in a minority or vulnerable group caused her rights to be infringed. Research questions that drove the initial research design included:  How are judgments that find a country in violation of the Convention implemented in that country? What factors influence the effectiveness and speed of judgment implementation? Which groups have experienced rights abuses in the most direct ways? Which groups, if any, have been able to use the ECtHR as a tool, and have litigated strategically in order to bring about policy reform?

 A number of interesting issues arose with an analysis of the United Kingdom’s protection of the rights of minority and other vulnerable groups. Perhaps most interesting is the extent to which various groups are (or are not) successful in winning cases, which factors contribute to that success, and which groups are likely to see violations translated into policy reforms that favour their group’s interests, and why. There is a substantial variation in the answers to those questions, and to highlight the difference and help explain the reasons behind it, we can first look at cases brought against the UK by homosexuals and transsexuals, who have managed to use the Court to change discriminatory policies that directly affect them. We can then turn our attention to victims of wrongful death and illegal imprisonment in Northern Ireland and gypsies in the UK as examples of groups that have been largely unsuccessful at utilizing the Court to their advantage. Read the rest of this entry…

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Response to Alison MacDonald’s and Dapo Akande’s comments

Published on July 14, 2009        Author: 

We thank Alison MacDonald for her illuminating and extremely useful perspective on the developments in the approach of the British courts to adjudication based on international law. In many respects the changing attitude toward international law,  headed by the House of Lords under the unmistakable leadership of Lord Bingham, has provided an example for other national courts (NCs) to follow, starting in 2004 with the so-called Belmarsh Detainees judgment, that stunning 8-1 majority declaration that found the detention of foreign suspected terrorists incompatible with the Human Rights Act.  Such leadership is critical to change the status quo not only within a jurisdiction but also regionally and perhaps even globally (and no doubt, as MacDonald suggests, it facilitated a mutually reinforcing relationship between the House of Lords and the ECtHR).

Other useful observations of MacDonald’s that are worth highlighting include the reference to the Court of Appeal’s blend of interpretive biases as leading – as often is the case – to conceptual confusion (in this case between customary and conventional international law); the inclusion of the Divisional Court’s “bright line” rationale characterizing the division of responsibilities between domestic and international courts followed by a brief documentation of the principle’s growing impracticality and obsolescence, and the description of how NCs continue to emphasize the importance of continuity and their fealty to their traditional role even as they venture further and further into the international legal sphere. This is an excellent example of how low visibility, incremental change can achieve a great deal at relatively low political cost.

We thank Professor Akande for his thoughtful review of our main arguments presented in our recent EJIL essay. We reproduce a number of his points below and respond to each of them in turn. A fuller treatment of a number of the issues that Akande raises can be found in several of our recent publications in this area (see Benvenisti 2008, Benvenisti & Downs 2009, and Benvenisti & Downs forthcoming 2009). Read the rest of this entry…

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Peacemaking or Discrimination: Bosnia’s Dayton Constitution before the European Court of Human Rights

Published on June 1, 2009        Author: 

A hearing will be held this Wednesday before the Grand Chamber of the European Court of Human Rights in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (press release here). A Venice Commission amicus brief is available here. A webcast of the hearing will be available here on Wednesday afternoon.

The applicants are Bosnian nationals, who are respectively Roma and Jewish by their ethnicity. They complain because, despite possessing experience comparable to the highest elected officials, they are prevented by the Constitution of Bosnia and Herzegovina from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins. They invoke, inter alia, Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 3 of Protocol No. 1 to the Convention (right to free elections) and Article 1 of Protocol No. 12 to the Convention (general prohibition of discrimination).

In brief, the Dayton settlement of the Bosnian conflict divided some of the institutions of the state government by ethnicity, so that the three member Presidency must be comprised of one each ethnic Serb, Croat and Bosniak/Bosnian Muslim. Further, one chamber of the Bosnian parliament, the House of Peoples, is comprised of 15 members, 5 of whom have to be from each of the three ‘constitutive’ peoples. The two applicants thus complain that, being Roma and Jewish respectively, they cannot stand for election for either the Presidency or the House of Peoples. In their view, this is clearly prohibited discrimination on grounds of ethnicity.

It is very likely that this will be the first case that the European Court will decide on the merits on the basis of Protocol 12, which introduced a general prohibition of discrimination into the ECHR system. Prior to that, the prohibition of discrimination in Article 14 was only of accessory character, meaning that the legal right or interest in respect of which discrimination was being alleged had to fall within the scope of one of the ECHR provisions. The relevance of this limitation is apparent from the instant case – Art. 3 of Protocol 1 to the ECHR only guarantees the right to vote and to stand for election for a legislature – but the Presidency of Bosnia and Herzegovina is not a legislature. Art. 14 could thus not be invoked in this regard, but Protocol 12 could be, because it sets out a general prohibition of discrimination, in respect of any right set forth by (domestic) law.

As far as the merits of the discrimination claim are concerned, the Court has in its Article 14 jurisprudence established that discrimination constitutes (1) a difference in treatment of persons or groups who are in a similar situation, (2) that has no objective and reasonable justification. In order for there to be such a justification, the treatment concerned must (a) be implemented for the pursuance of a legitimate aim, and (b) must be proportionate to that aim. Further, some grounds of distinction, such as ethnicity, race or gender, are by their very nature suspect, and particularly weighty reasons would have to be adduced by a state to justify them.

If we applied the Court’s test to the present case, there would undoubtedly be a difference in treatment on grounds of ethnicity (1). When it comes to the question whether there is a justification for such differential treatment, there would again undoubtedly be a legitimate aim for it (2(a)) – the establishment and maintenance of peace in post-conflict Bosnia. The question to be decided by the Court, therefore, is whether this distinction is proportionate to that aim (2(b)).

How the Court is going to answer this question is anyone’s guess. Aside from the general problem of commensurability that is inherent in all balancing tests, the proportionality inquiry in the present case clearly requires a value judgment. On the one hand, every liberal atom of one’s being cries out against discrimination based on ethnicity. On the other, there is the indisputable fact that Bosnian society is still markedly divided on ethnic lines (which, of course, measures like the ones above serve to both control and perpetuate). Then there is the whole question of whether an international court sitting in Strasbourg is best called upon to make this value judgment, or whether that judgment should still, for the time being at least, be the province of (what goes for) democratic political process in Bosnia.

At any rate, this is a case to watch.

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Norm Conflicts and Human Rights

Published on May 13, 2009        Author: 

Consider the following scenario: the United Kingdom, together with the United States and other allies, invaded Iraq in 2003. From that point on, there was an international armed conflict between the UK and Iraq. Further, as it obtained effective control over certain parts of Iraqi territory, the UK became the occupying power of these territories. Under Art. 21 of the Third Geneva Convention, and Arts. 41-43 of the Fourth Geneva Convention, the UK had legal authority to subject enemy POWs and civilians to internment.

Yet, on the other hand, the UK is a state party to the European Convention on Human Rights. In some circumstances, the ECHR applies extraterritorially. What those circumstances are is an (overly) complex question, but the UK has conceded in the Al-Skeini case before its domestic courts that the ECHR applies to extraterritorial detention.

Unlike Article 9 ICCPR, which sets a standard by prohibiting arbitrary arrest and detention, Article 5 ECHR contains a categorical prohibition of detention, except on a limited number of grounds. Preventive detention or internment on security grounds is not one of them. Further, Article 5(4) ECHR requires judicial review of any detention, while Art. 5 GC III only provides for status tribunals if POW status is doubt, and Art. 43 GC IV expressly permits review of detention by mere administrative boards.

So, on one hand we have IHL treaties expressly authorizing preventive detention or internment. On the other we have the ECHR expressly prohibiting such detention. No amount of interpretation can bring the two rules into harmony – they are in a state of genuine norm conflict. That norm conflict could have been avoided had the UK made a derogation under Art. 15 ECHR, but it did not do so (and there is a further question whether it could have actually done so, which needs ti be clarified in the future, though in my view the answer is clearly in the affirmative).

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European Court decides A and others v. United Kingdom

Published on February 19, 2009        Author: 

Today the Grand Chamber of the European Court of Human Rights delivered its judgment in A and others v. United Kingdom, App. No. 3455/05, the sequel to the Belmarsh case, [2005] UKHL 71, decided by the House of Lords several years ago. The applicants were detained preventatively as suspected terrorists by UK authorities pursuant to legislation passed by Parliament and a derogation from Article 5 ECHR made by the UK after the 9/11 attacks under Article 15 ECHR. The House of Lords declared the derogation incompatible with the ECHR, on the grounds that it discriminated between nationals and non-nationals, as it allowed the preventative detention only of the latter. Today it was the European Court’s turn to deal with numerous issues arising out of the applicants’ preventative detention.
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