Impact of the European Convention on Human Rights in states parties -  - E-Book

Impact of the European Convention on Human Rights in states parties E-Book

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What positive impact has the European Convention on Human Rights had upon states parties to the Convention? The examples presented in this publication show that the effects of the Convention and its case law extend to all areas of life. They include, but are not limited to, individuals’ access to justice, the prohibition of discrimination, property rights, family law issues such as custody rights, the prevention and punishment of acts of torture, the protection of victims of domestic violence, the privacy of individuals in their correspondence and sexual relations, and the protection of religious freedoms and freedoms of expression and association. This publication contains selected examples from all 47 states parties to the Convention that illustrate how the protection of human rights and fundamental freedoms has been strengthened at the domestic level thanks to the Convention and the Strasbourg Court’s case law.

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IMPACT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN STATES PARTIESSELECTED EXAMPLES

Council of EuropeFacebook.com/CouncilOfEuropePublications

Overview prepared by the Legal Affairs and Human Rights Department upon the request of Mr Pierre-Yves Le Borgn’ (France, SOC), Rapporteur on the implementation of judgments of the European Court of Human Rights.[01][02]

Introduction

Article 1 of the European Convention on Human Rights (“the Convention”) places primary responsibility on states parties to ensure that the rights and freedoms enshrined in the Convention are fully guaranteed to everyone within their jurisdiction, and that their national law and practice conform with the Convention, as authoritatively interpreted by the European Court of Human Rights (“the Court”, “the Strasbourg Court”). As a corollary of states’ principal responsibility in securing the effective protection of Convention rights and the Strasbourg Court’s role as the final arbiter as to the scope and meaning of these rights, states parties are obliged to fully and rapidly implement the Court’s final judgments (Article 46, paragraph 1 of the Convention).

This paper contains selected examples from all 47 States Parties to the Convention that illustrate how the protection of human rights and fundamental freedoms has been strengthened at the domestic level thanks to the Convention and the Strasbourg Court’s case law. The list is by no means exhaustive, and does not claim to be representative of the fields in which the Convention has had the most far-reaching impact.

In most instances, a respondent state enjoys a certain discretion as to how to give effect to the Court’s judgments, subject to the Committee of Ministers’ supervision. Corrective measures that states have undertaken to implement Court judgments include constitutional and legislative amendments, organisational and administrative reforms, as well as adjustments reflected in the case law of the highest judicial organs. Of relevance, in this connection, is the status of the Convention and its protocols in the domestic law of states parties (see Appendix – Select bibliography).

A number of states made changes to their legal systems prior to or shortly after their accession to the Council of Europe, in order to bring them into conformity with Convention requirements. Mention can be made of Switzerland, which granted women the right to vote at federal level before ratifying the Convention. In the course of the political changes in the late 1980s/early 1990s, several post-Soviet states abolished the death penalty; and a number of countries joining from Central and Eastern Europe undertook an analysis of whether their legal system complied with Convention standards, and adapted their respective legal systems and practices accordingly.

As illustrated by the examples discussed below, a violation need not necessarily be found by the Court in Strasbourg for the Convention to have an impact; in fact, a number of reforms have been implemented without the Court first finding a violation. On some occasions, a violation has been remedied prior to a judgment of the Court, leading to the case being removed from the Court’s docket. In others, friendly settlements (in accordance with Article 38 of the Convention) have been reached on the basis of the respondent state accepting an alteration of its law or practice, or the case has been struck out following a unilateral declaration (in accordance with Rule 62A of the Rules of Court[1]) by the state acknowledging a violation and undertaking to remedy the situation. Similarly, states have been prepared to meet their Convention obligations by scrutinising the Court’s case law and, if necessary, adjusting their legal systems following the finding of a violation in a case against another state, thus amplifying the effect of the Court’s case law across Europe by taking into account the interpretative authority (res interpretata) of the Strasbourg Court’s judgments.

The examples, in this information document, show that the effects of the Convention extend to all areas of human life, benefiting individuals, associations, political parties, companies, and persons belonging to particularly vulnerable groups such as minors, victims of violence, elderly persons, refugees and asylum seekers, defendants in judicial proceedings, persons with (mental) health problems, and those belonging to national, ethnic, religious, sexual or other minorities.

The areas where the Convention and its case law have brought about change include, but are not limited to, individuals’ access to justice, the prohibition of discrimination, property rights, family law issues such as custody rights, the prevention and punishment of acts of torture, the protection of the victims of domestic violence, the privacy of individuals in their correspondence and sexual relations, and the protection of religious freedoms and freedoms of expression and association.

Finally, it is important to bear in mind that although Convention standards, enriched by the Court’s case law – especially that of the Grand Chamber’s judgments of principle – create a body of law which reflects “common European standards” by which all states parties are bound, this European supervision functions without prejudice to the basic premise that states ensure higher standards of human rights protection (Article 53 of the Convention).

Impact of the European Convention on Human Rights in states parties: selected examples

ALBANIA

More effective prevention of child abduction

The applicant in Bajrami v. Albania (Application No. 35853/04, judgment of 12 December 2006) had been unable to have a custody award in his favour enforced, since his ex-wife had taken their daughter to Greece. The Court found a violation of Article 8 of the Convention (right to respect for family life), interpreted in light of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”[2]), due to the lack of a specific remedy for preventing and punishing child abduction. This judgment prompted the Albanian authorities to complete the ratification procedure of the Hague Convention, to which it became a party on 1 August 2007.

Proceedings cannot be reopened by prosecutor

In Xheraj v. Albania (Application No. 37959/02, judgment of 29 July 2008), the Strasbourg Court, inter alia, found that, by granting the prosecutor’s appeal against the applicant’s acquittal out of time, the Supreme Court had infringed the principle of legal certainty, thus violating the right to a fair trial (Article 6.1 of the Convention). In response, the Albanian authorities organised training seminars and round-tables for judges and legal professionals to ensure appropriate implementation. The Supreme Court agreed to reopen the proceedings in relation to a number of applicants who had won their case in Strasbourg, including Mr Xheraj (see Resolution CM/ResDH(2014)96[3] and Supreme Court of Albania, Case No. 76 of March 2012).

Improvement of detention conditions

In Dybeku v. Albania (Application No. 41153/06, judgment of 08/12/2007), the Court ruled that the inadequacy of the applicant’s detention conditions and inappropriate medical treatment qualified as inhuman and degrading treatment contrary to Article 3 of the Convention. In April 2014, a Law on the Rights and Treatment of Prisoners and Detainees was adopted, and the General Prison Directorate announced a review of the General Prison Rules as well as continuous training to medical staff in penitentiary hospitals. The positive impact of the individual measures taken in response to the Court’s judgment, namely the applicant’s transfer to a specialised establishment for prisoners suffering from certain mental illnesses where he received daily medical treatment and psychiatric counselling, were acknowledged by the Court in Dybeku v. Albania (Application No. 557/12, decision (inadmissible) of 11 March 2014, paragraphs 25-26). (See information on the state of execution, available from the website of the Council of Europe’s Department for the Execution of Judgments of the European Court of Human Rights “Execution Department”.[4]

ANDORRA

Access to Constitutional Tribunal no longer subject to State Counsel’s approval

A noteworthy legislative change was effected following the Court’s admissibility decision in the case of Millan i Tornes v. Andorra (Application No. 35052/97, decision (strike out) of 6 July 1999), in which the applicant had complained under Article 6, paragraph 1, of the Convention (access to a court) that the Andorran General Prosecutor’s refusal to grant permission to lodge an empara appeal had denied him access to the Andorran Constitutional Court. The entry into force of the Constitutional Court (Amendment) Act on 20 May 1999 ultimately allowed the applicant to lodge an appeal with the Constitutional Court without the Principal State Counsel’s agreement being required. In light of this, a friendly settlement was reached and the application was struck out of the list by judgment of 6 July 1999 (see paragraphs 19-23 of the Court’s judgment (friendly settlement) of 6 July 1999, and Resolution DH (99) 721).

Domestic proceedings reopened subsequent to finding of a violation by the Strasbourg Court

The Court’s finding of a violation of Article 6, paragraph 1, of the Convention (right to a fair trial) in the case of UTE Saur Vallnet v. Andorra (Application No. 16047/10, judgment of 29 May 2012, available in French only) stemmed from a lack of impartiality of the administrative chamber of the High Court of Justice, due to the fact that the reporting judge in the appeals procedures in this case was a partner in a law firm providing legal services to the government. The Court dismissed the government’s preliminary objections and held that, owing to the unduly strict interpretation of a procedural rule by the said chamber and by the Constitutional Court, the applicant company had been deprived of the possibility to obtain a hearing to have its appeal on grounds of nullity examined. Parliament subsequently refined its Judicial Proceedings Act to permit the review of such cases before its High Court of Justice (law of 24 July 2014).

ARMENIA

Conscientious objectors need not serve in the military

In the case of Bayatyan v. Armenia (Application No. 23459/03, Grand Chamber judgment of 7 July 2011) before the Grand Chamber, the Court held that the prosecution and conviction of the applicant for refusing to perform military service had been in violation of his right to manifest his religion or belief under Article 9 of the Convention (freedom of conscience and religion). In 2013, Armenia therefore amended its Law on Alternative Service. Applications for alternative service from conscientious objectors have since been routinely granted; imprisoned contentious objectors have been released and their criminal records deleted (see Resolution CM/DH(2014)225).

Protection from unlawful deprivation of property

The case of Minasyan and Semerjyan v. Armenia (Application No. 27651/05, judgment of 23 June 2009) concerned an expropriation process in the centre of Yerevan, by which the applicants (and hundreds of other families) were deprived of their property. These expropriations were based on a number of government decrees, in disregard of a decision by the Constitutional Court of 27 February 1998 which required that expropriations be based on statutory provisions. The Court found a violation of Article 1 of Protocol No. 1 to the Convention (protection of property). While the adoption of a Law on Expropriation for the Needs of Society and the State pre-dates the Court’s judgment, the latter’s importance principally stems from the fact that it put emphasis on the need to observe the state’s obligations under its own constitution, as interpreted by the Constitutional Court (see information on the state of execution, available from the website of the Execution Department).

No arrest or detention for administrative offences

As a result of the implementation of the Court’s judgment in Galstyan v. Armenia (Application No. 26986/03, judgment of 15 November 2007), in which the Court found a violation of the applicants’ right to freedom of assembly (Article11 of the Convention) due to their arrest and sentencing to several days of detention for their (alleged) participation in demonstrations, “administrative arrest and detention” practices of the law enforcement agencies were eliminated in law (see information on the state of execution, available from the website of the Execution Department).

Reform of the Criminal Procedure Code

In a number of cases including Poghosyan v. Armenia (Application No. 44068/07, judgment of 20 December 2011) and Sefilyan v. Armenia (Application No. 22491/08, judgment of 2 October 2012), the Court had to decide on the lawfulness of the applicants’ detention. These judgments led to a change in the case law of the Court of Cassation, which now interprets national law in the light of breaches found by the Strasbourg Court with respect to, in particular, Article 5, paragraph 1 (lawfulness of detention), paragraph 3 (right to be brought promptly before a judge) and paragraph 4 (right to have lawfulness of detention speedily examined by a court). The Court of Cassation has ruled that there should always be an opportunity to apply for pre-trial release on bail, regardless of the gravity of the charges; and that an accused must be brought before a competent court within three days of his or her arrest to have the lawfulness of the detention examined (see information on the state of execution, available from the website of the Execution Department).

AUSTRIA

Putting an end to the state monopoly on TV and radio broadcasting

In Informationsverein Lentia and Others v. Austria (Application No. 13914/88 et al., judgment of 24 November 1993) the Court found that the impossibility for the applicants to set up and operate private radio or television stations due to the monopoly of the Austrian Broadcasting Corporation breached Article 10 of the Convention (freedom to impart information). This judgment resulted in a liberalisation of regional and local radio broadcasting and of cable and satellite broadcasting, including a decision in 1995 by the Constitutional Court that removed the prohibition on the transmission of original programmes via cable (see Resolution DH (98) 142).

Adoption rules must equally apply to unmarried different- and same-sex couples

The judgment in X. and Others v. Austria (Application No. 19010/07, Grand Chamber judgment of 19 February 2013) concluded that there had been a violation of Article 14 of the Convention (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for family life) on account of the difference in treatment of the applicants, that is, two women living in a stable relationship, in comparison with unmarried different-sex couples in which one partner sought to adopt the other partner’s child. The women had complained about the Austrian courts’ refusal to meaningfully examine one of the partners’ request to adopt her partner’s son, because Austrian law did not allow for such a possibility without severing the biological mother’s legal ties with the child. Within less than six months of the judgment, the law amending the Civil Code and the Registered Partnership Act entered into force, legalising second parent adoption in same-sex couples (registered or not) without terminating the child’s legal bond with his or her biological parent (see Resolution CM/ResDH(2014)159).

Disenfranchisement of prisoners must be proportionate

The Court’s judgment in Frodl v. Austria (Application No. 20201/04, judgment of 8 April 2010), finding the blanket ban on prisoners’ voting rights incompatible with the right to vote enshrined in Article 1 of Protocol No. 3 to the Convention (ETS No.045), prompted the Austrian Parliament to pass the Electoral Law Amendment Act in 2011. According to the amended Electoral Code, no prisoner can be automatically deprived of the right to vote; a decision on disenfranchisement has to be taken by a judge based on rules set out in law, while taking into account the particular circumstances of the case and having regard to the Convention and the Court’s case law (see Resolution CM/ResDH(2011)91).

Equality for fathers not married to the mother of their children

In Sporer v. Austria (Application No. 35637/03, judgment of 3 February 2011) the Court found that the applicant, the father of a child “born out of wedlock”, had been treated differently, without justification, in comparison both with the child’s mother and with married or divorced fathers in custody proceedings, resulting in a violation of Article 14 of the Convention (prohibition of discrimination) taken together with Article 8 (right to respect for family life). The relevant provisions of the Austrian Civil Code, pursuant to which the mother of a child “born out of wedlock” had sole custody unless the child’s best interest was at risk, were changed by virtue of the Law amending Child Custody Law and the Law on Names, which entered into force in February 2013. Austrian law now allows for judicial review into whether the interests of the child are better served by awarding sole custody to the father or joint custody (see Resolution CM/ResDH(2015)19).

AZERBAIJAN

Release of journalist from prison

In the case of Fatullayev v. Azerbaijan (Application No. 40984/07, judgment of 22 April 2010) the Court found that the conviction and prison sentence of a newspaper editor had violated his right to freedom of expression under Article 10 of the Convention, as well as his right to an independent tribunal (Article 6.1) and the presumption of innocence (Article 6.2). Mr Fatullayev was pardoned and released from prison on 26 May 2011 (see Interim Resolution CM/ResDH(2013)199 and Interim Resolution CM/ResDH(2014)183).

Restoration of possession of unlawfully occupied flat

The judgment in Akimova v. Azerbaijan (Application No. 19853/03, judgment of 27 September 2007) concluded that there had been a violation of Article 1 of Protocol No. 1 to the Convention (right to peaceful enjoyment of possessions) on account of the formal postponement, for an indefinite period of time, of the enforcement of a domestic judgment ordering the eviction of internally displaced persons who were unlawfully occupying the applicant’s apartment. The case was struck out after a friendly settlement[5] was reached, in accordance with which the applicant was afforded compensation. Her possession of her apartment was restored on 14 March 2008 (see information on the state of execution, available from the website of the Execution Department).

BELGIUM

Children “born out of wedlock” have equal inheritance rights

Legislative changes were made in response to Marckx v. Belgium (Application No. 6833/74, judgment (Plenary) of 13 June 1979) which found violations of Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the Convention. These amendments secured equal inheritance rights for children of parents not legally married to each other. Moreover, the Civil Code was amended in 1987, inter alia to recognise a legal bond between an unmarried mother and her child resulting from the mere fact of birth, without the need for the mother to recognise maternity in specific proceedings or to adopt her child (see Resolution DH (88) 3, as well as the follow-up case of Vermeire v. Belgium (Application No. 12849/87, judgment of 29 November 1991), and Resolution DH (94) 3).

Accused must be able to understand verdict

In Taxquet v. Belgium (Application No. 926/05, Grand Chamber judgment of 16 November 2010) the Court held that the criminal proceedings against the applicant before the assize court had been unfair, in violation of Article 6, paragraph 1, of the Convention. In particular, there had been no safeguards in place to enable the applicant to ascertain which items of evidence and factual circumstances had caused the lay jury to reach a guilty verdict against him. In implementation of the Chamber’s judgment of 13 January 2009,[6] and without awaiting the judgment of the Grand Chamber, Belgium adopted a new law on 21 December 2009 which stipulates that the jury’s verdict must contain the principal reasons for the jury’s decision, to be formulated by the members of the jury assisted by the professional judges (see Resolution CM/ResDH(2012)112).

Right to a public hearing in disciplinary proceedings

An adjustment of the national courts’ jurisprudence on the right to a fair and public hearing by an independent and impartial tribunal established by law was prompted by the Court’s judgments in Le Compte, Van Leuven and De Meyere v. Belgium (Application Nos. 6878/75 and 7238/75, judgment (Plenary) of 23 June 1981) and Albert and Le Compte v. Belgium (Application Nos. 7299/75 and 7496/76, judgment (Plenary) of 10 February 1983). The Belgian Supreme Court recognised that the right to exercise a profession which does not constitute a public function fell within the notion of a “civil right” for the purpose of Article 6, paragraph 1, of the Convention (right to a fair trial) and, accordingly, that disciplinary hearings before professional councils had to satisfy Convention standards (at least at the stage of appeal) regarding their public conduct (see Resolution DH (85) 14 and Resolution DH (85) 13).

Parties must be able to reply to intervention of the representative of the prosecutor’s office

The case of Borgers v. Belgium (Application No. 12005/86, judgment (Plenary) of 30 October 1991) concluded that the impossibility for an accused to reply to submissions made at a hearing of the Supreme Court by an official of the Procurator General’s department at that court, who moreover participated in the deliberations, was contrary to the applicant’s defence rights under Article 6 of the Convention (right to a fair trial). Shortly afterwards, it became customary to give the parties to the proceedings an opportunity to respond to the opinion of the Procurator General’s representative. The latter has henceforth no longer participated in the deliberations. This practice of allowing parties to respond to the opinion of the representative of the prosecutor’s office, in particular in civil cases, was ultimately extended to all levels of jurisdiction and translated into an amendment to the Judicial Code (see Resolution ResDH(2001)108).

Right to assistance by a lawyer during police interrogation

In Salduz v. Turkey (Application No. 36391/02, Grand Chamber judgment of 27 November 2008), the Court held that Article 6, paragraphs 1 and 3.c, of the Convention implied that access to a lawyer should be provided, as a rule, from the first police interview of a suspect. In order to comply with these provisions of the Convention, as interpreted by the Court, the legislature adopted a law on 13 August 2011 (generally called the “Salduz law”) providing for certain rights for everyone who is interrogated and who is deprived of his or her liberty, including in particular the right to consult a lawyer and to be assisted by a lawyer. The law was subsequently followed by various measures to make these rights effective, including through adaptation of the system of legal aid funded by the state.

BOSNIA AND HERZEGOVINA

Judgments ordering the release of “old” foreign-currency savings must be enforced

The applicant in Jeličić v. Bosnia and Herzegovina (Application No. 41183/02, judgment of 31 October 2006) was unable to withdraw her foreign-currency savings deposited prior to the dissolution of the Socialist Federal Republic of Yugoslavia. A judgment ordering the release of her savings was not enforced, and the Court held that this amounted to a violation of the applicant’s right to access to court guaranteed in Article 6, paragraph 1, of the Convention as well as a violation of her right to peaceful enjoyment of property under Article 1 of Protocol No. 1. In implementation of this judgment, Bosnia and Herzegovina amended Article 27 of the Law on Settlement of Obligations arising from Old Foreign Currency Savings, to the effect that the courts are now obliged to submit final judgments to the ministries of finances for their settlement, creating a legal basis for the enforcement of final judgments (see Resolution CM/ResDH(2012)10).

Psychiatric detention must be based on court decision

The Court’s case law has led to legislative amendments regarding the rules on psychiatric detention. Following Tokić and Others v. Bosnia and Herzegovina (Application Nos. 12455/04 et al., judgment of 8 July 2008), where the applicant’s psychiatric detention was found to be in violation of Article 5, paragraph 1 (right to liberty and security of the person) due to its failure to comply with essential procedural safeguards, the Code of Criminal Procedure was amended in 2003. Consequently, persons can no longer be held in psychiatric detention pursuant to an administrative decision taken by the Social Work Centre, but only based on a decision of the competent civil court (see Resolution CM/ResDH(2014)197, as well as Halilović v. Bosnia and Herzegovina, Application No. 23968/05, judgment of 24 November 2009, paragraph 14).

Requirement to reunite mother with son