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Human Rights ----------- European Convention of Human Rights Human Rights(HR) are universally accepted basics standards which aim to ensure that every person is treated with dignity and respect. This rights are interdependent and indivisible which means that the rights are linked with one another and that the fact of not observing one of them may have an impact on another. Human Rights are considered as being inherent to all people without discrimination and regardless of the political system of the State which is supposed to protect them. When you deal with notion of human rights the principle of non discrimination is at the center of HR and is a principle that features in the major Human Right Treaties (this principle is found in most of HR Treaties) HR are usually set out in international or regional treaties or national legislation where the form a legal statement of universally accepted principle of how the state should treat it’s nationals but also all the people living within its jurisdiction. Human Rights apply to everyone (without taking into consideration your nationality).

HR are divided in 2 main categories : - civil and political rights such as the right to live , the right to a fair trial, or the right not to be subjected to torture - economic, social and cultural rights such as the right to work, the right to join a trade union, or the right to education. Who is responsible of protecting HR ? → The States are responsible. Under the international law, the States are obliged to respect, protect human rights. Respect → State must not interfere with human rights or restrict them. To protect → involves passing laws, and creating mechanisms to prevent any violations of rights by State’s authorities but also by non state actors. To fulfil → States must take all positive actions to ensure the enjoyment of the rights ex. right to education - state have to create schools ( do everything that is required to make sure that the right to education is respected)

European System of Protection of Human Rights 1

Regarding the european system : 2 parts : - Council of Europe (focuses on HR and the rule of law across the 47 MS) Many states are not member of EU (ex. Russia, Ukraine) Its primary instrument is the European Convention of Human Rights, which is enforced by the European Court of Human Rights which is located in Strasburg. - European Union (28 Member States) ; within the EU Human Rights are protected through European Union Charter of Human Rights. Charte is enforced by CJEU located in Luxembourg. The Council of Europe and EU cooperate in many ways but it remains that the 2 organisations are completely separated and are different in how they are structured and the ways they work. Every member state of EU is member state of Council of Europe.

European Convention of Human Rights Full name : The European Convention for the protection of human rights and fundamental freedoms Drafted in 1950, came to force in 1953. The european convention of HF is often considered to be the most successful of all regional human rights treaties. Why is that? Because the rights set out in the convention can be directly enforced by the European court of HF against MS. And the individuals have the possibility to take the case for alleged breaches of their rights to the court. Alleged → someone claims that one of their rights was breached (supposition) , maybe it will turn out to be true maybe not. Court will decide. breaches → synonym : a violation , infringement ( to violate) Art 1 : general obligation to respect human rights this article requires that all parties to the convention make sure that everyone living within their jurisdiction can enjoy the rights and freedoms guaranteed by the convention. Rights and freedoms protected by the convention : - art. 2 : the right to live → it is an article that can be relied on by an applicant (someone who files a claim in front of the court, starts an action in the court, petitioner, plaintiff) regarding issues as abortion, euthanasia - art 3 : prohibition of torture, again : can be problematic -> what do we understand as torture ? physical yes, but what about psychological torture ? - art 4 prohibition of slavery and forced labor( military service) : - art 5 right to liberty and security : - art 6 the right to a fair trial → what do we understand as a trial ? do we take into account all that comes before a trial (we get arrested, what happens in custody, the law of the state in which we are arrested, if the law says that in custody we cannot be assisted by the lawyer) - art 7 no punition without the law : we cannot be punished for something that was not an offence at the time of act of question (not possible to pass criminal law with retrospective effect) - art 8 : the right to respect for private and family life - art 9 : freedom of thoughts culture, religion - art 10 freedom of expression (in US : freedom of speech) - art 11 freedom of assembly and association right to create trade union) 2

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art 12 the right to get married art 13 the right to an effective remedy (effective solution, sentence, this is what I want to obtain from going to the court, second definition : when I have the possibility of an appeal, the appeal is an appel (voie de recours) ) this remedy must be effective, can really be used (not something theoretical) ex. I lose the case and there is a law that I have the right to appeal (I have remedy). But the law states that I have 5 minutes to appeal → the remedy is ineffective. First I must have the possibility to appeal and the chance of should be effectif. ex. In France there are some litigation where there is 24 hours to appeal -

art 14 prohibition of discrimination

number of protocols were added to the convention creating new rights

Protocol nr 1 ° art 1 : protection of private property : you cannot be deprived of your property without a fair compensation State can deprive you of your propriety only when you receive an appropriate compensation. compulsory purchase of land (l’expropriation). ° art 2 : right to education ° art 3 : right to free elections.

Protocol nr 6 art 1- abolition of the death penalty (this abolition was not absolute since the States have the possibilities to apply the death penalty ex. in times of war)

Protocol nr 7 art 4 The right not to be tried or punished twice (non bis in idem) ex. in France if you commit a crime, in addition to the punition there will be also administrative sanctions (points and driving licence) France argued that it was an administrative decision that could not count as a sanction. art 5 : equality between spouses (husband and wife have the same rights) , does it apply to PACS? yes it counts.

Protocol nr 13 art 1 abolition of the death penalty in all circumstances : no exception is allowed

General comment : Only the states which are signed up to this protocols are obliged to protect the rights that they contain.

European Court of Human Right

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This court enforce European Convention of Human Rights. This court has the power to hold States accountable for a failure to respect, protect où fulfill the rights contained in the Convention. This court is comprised of 47 judges (one from each member state) If someone feels that their convention rights are being violated, they can bring their case to the European Court of Human RIghts. However there is a number of conditions for a case to be taken to the court. Conditions : -

before someone can take a case to the European Court of Human Rights (the person must have exhausted all the domestic remedies available to them) and this within the time limit. → you cannot take your case to ECHR if you didn’t exhaust the national remedies. Do I have the right to take my case directly to the ECHR ? → NON. They are some exception (ex. being subjected to torture) -

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the applicant must be directly and personally the victim of the alleged violation (there are some exception : where the case is taken to court by the legal representants of the victim (person without capacity : minor, mental disorder) ex. when a State will take a case contre another State no application before the court can be anonymous (when you file a claim, the court must know who you are) (but there are some states that when they know who you are , you might be in trouble, the fact that your claim can’t be anonymous doesn’t mean that the State will know : we can ask the court to preserve our anonymity (the court will know who we are, but not the member state) the complaint can only be about rights contained in the Convention (no possibility to invoke the right not protected by the convention) the case must not have been brought before the European COurt of Human Rights before (you cannot bring your case a second time)

It is possible for the individuals to file a claim against the State but also another member state can bring a case against another Member State. The first State which brought a claim against another Member State : 1957 when the Republic of Ireland brought the claim against UK on the ground of prohibition of torture. IRI Irish Republican Army (considered as terrorists by the UK) Within the members of IRI there were Irish people and some were Irish but their nationality was british. This people were arrested, tried and imprisoned in UK. Some of them of irish nationality were subjected to torture by british police. ground : art 3 of the convention.

Procedure File a claim to the Court register , with all the details of the alleged violation. 4

The first thing before dealing with the merits of the case (le fond du dossier) , the register must deal with the procedure.The Register will check if the preliminary conditions are fulfilled. If not : your claim will be declared inadmissible. This decision is final. You cannot appeal from the inadmissibility. The case may be reviewed by the Court without any need for the applicant of the defending state to appear in Strasburg. The case can be decided without the presence of the parties. In exceptional cases, the case may be referred to the Grand Chamber , and in that case the applicant and the member state will have the possibility to attend the hearing (audience).

Composition of the court Depends on the type of case. Cases may be heard in different ways. A single judge or the 3 judges committee can rule on the admissibility of a case concerning an issue already covered by established case law. It means that maybe in the past somebody complained about a problem which already have been dealt by the Court. ex. I live in France and France is going to decide that I will be deprived of my property. But I will be paid a fair compensation. I will file a claim. But it is something that was already decided concerning Russia.

ex. Decision against Turkie : when you are in custody you have a right to be assisted by the lawyer. Somebody complained that It was a violation of ECHR. And in consequence France changed the state of law and France authorised the lawyer for people in custody. (before being condemned by the ECHR) Because one case is applicable in all Member States. Other cases are referred to 7 judges chamber while occasionally cases can be referred to the Grand Chamber of 17 judges. What happens when the court decides that there has been a violation of the Convention ? When the court makes a judgement the State against which the judgement is made must carry out any obligations resulting from the jugement in question. It means that the State in question will have to take all the necessary steps and measures to redress the violation in question. And this measures will take 2 different aspects : - the State will have to take specific measures -> the State will have to take the measures that are necessary to compensate the loss sustained by the victim of the violation but the State will also have to take general measures - general measures → the State will have to take all the necessary steps for the violation to not happen again ex. when we are a child and our father died, my right were different depending of the state of my father - Man is married with a women 1 and he has a child with her : the child is legitimate (child born in the marriage with women nr 1) - after a divorce, this father will have another child but they are not married - and then this man get married 2d time (women nr 2) and will have children with women nr 3

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Now :If the father has 600 000 € : Child A : 200 000 Child B : 200 000 Child C 200 000 Before : Child A : 200 000 + 50 000 Child B : 200 000 + 50 000 Child C : 200 000 / 2 = 100 000 (child born in the adultery )

Case brought before ECHR Argument : discrimination based on birth France was obliged to pay the difference : 100 000 euros. (the money that he should have got but he didn’t by the reason of the legislation that was discriminatory).

Some examples of decisions 1959 Ireland introduced legal aid in respect of civil cases. Before it was possible only in criminal case. It was considered that it was a violation of a fair trial (because if you have 1988 Ireland decriminalized homosexuality (before it was illegal to be homosexual) 1982 the UK banned corporal punishment in schools

Enforcing jugements Committee of Ministers : Decision making body of the Council of Europe The role : enforce jugements Comprised of ministers of foreign affairs of all the Member States. When the ECHR decides that there has been a violation of the convention by the MS the judgement of the court is binding on the MS in question. MS must comply with the jugement and put this jugement in practice. In fact : how do we enforce a judgement in Russia when they decide not to apply this jugement ? We can’t. There is nothing that we can do. Effects are going to be diplomatic. The judgement is binding only on the State concerned. But when one MS is found guilty of violation and there is another MS which is involved in the same violation it is the best for this MS to change this state of law before the condamnation.

Enforcing judgements in EU CJEU finds that there has been a violation of Charter ? In the EU → all the MS receive subsidies from the EU. EU will deduct the amount of money from the subsidies.

Committee of ministers → Monitors how the jugements are implemented both as regards specifics measures and general measures.

Rights contained in the European Convention of Human Rights

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Many people thing that all the rights protected by the convention are on the equal footing. This is not true, on distinguish between two types of rights that don’t work in the same ways. - absolut rights - qualified rights Absolut right (unqualified right) - a right in respect of which no derogation is allowed. It includes prohibition of torture (cannot ever be justified), prohibition of slavery, no punishment without law. Qualified rights - right that can be interfered with under limited circonstances, the interference must not be disproportionate. ex/ right to respect of private life An illegal immigrant lives in France and one day gets arrested by the police. The person is going to be arrested. Administration takes a deportation order. the person is going to be send to his home country. Is it legitimate for a state to fight illegal immigration ? YES. on the other hand : right to respect private and family life If the state decide of deportation, does it violate the respect of private and family life ? It depends on the personal situation. (how long I am in France, if I have a family in France) for 2 months - no private life in France 20 years : my wife is French and I have children here : violation of respect of private and family life Balance between the two. In the second case it would be disproportionate.

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