University of Minnesota




DAVID WEISSBRODT, JOAN FITZPATRICK, AND FRANK NEWMAN, INTERNATIONAL HUMAN RIGHTS—LAW, POLICY, AND PROCESS (3d ed. 2001).

Supplement to Chapter 12: The European Human Rights System (November 2003)


 

Section A  Introduction (Coursebook at 623)

 

Article 3 of the Statute of the Council of Europe states that " [e]very member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council…" [1]

 

Section C Areas of Protection in the European Court of Human Rights (Coursebook at 628)

 

“Article 8 (art.8)” at paragraph 38 should be “Article 8” (Coursebook at 629).

 

Section C.1. Areas of Protection in the European Court of Human Rights: Homosexuality (Coursebook at 628)


Note 7. Further case law on the rights of Transsexuals (Coursebook at 639)

Case Of I. v. The United Kingdom

 In this 2002 case, [2]  the applicant alleged violations of Articles 8, 12,and 14 of the European Convention with respect to the legal status of transsexuals in the United Kingdom. She complained that there was no legal recognition of her post-operative sex and that this was a breach of her right to respect for her private life.  The Court looked at the situation “in the light of present-day conditions” [3] to determine the appropriate interpretation and application of the Convention with respect to the rights of transsexuals.

 The court paid particular attention to the fact that the State had authorized, financed, and assisted in the treatment and surgery, and found that it was unreasonable and illogical to refuse to recognize the legal implications of the result of the treatment. [4]

 The court agreed with the government that, as in its previous cases, there was no medical consensus on the origins of transsexualism, but found persuasive the fact that “it has wide international recognition as a medical condition for which treatment is provided in order to afford relief.” [5]  Based on the research of Liberty, a U.K. based human rights NGO, the court also found that there was an emerging international trend recognizing the legal status of transsexuals. In addition, the expansion of the Council of Europe to 45 member states meant that there could be no reasonable expectation of a shared European approach and the court decided to accord less weight to a Europe-wide consensus than it had done in its previous cases. [6]  The Court found a violation of Article 8 and of Article 12, the right to marry, and declined to make any findings under Article 14.

 In subsequent cases, the Court has continued to develop its Article 8 jurisprudence on the rights of transsexuals. In Van Kück v. Germany [7] the Court found a violation of Article 8, reasoning that the state did not strike a fair balance between the interests of a private health insurance company, on the one side, and the interests of an individual seeking health care reimbursement for gender re-assignment surgery, on the other. 

Note 10. Further U.S. case law on the rights of Homosexuals (Coursebook at 641)

 

 On June 26, 2003, the Supreme Court in Lawrence v. Texas reversed Bowers and Justice Kennedy, writing for the majority, corrected Chief Justice Burger’s statement:

 

“The sweeping references by Chief Justice Burger to the history of  Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. . . . Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to  Bowers and to today’s case. An adult male resident in Northern Ireland  alleged he was a practicing homosexual who desired to engage inconsensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights.  The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) par. 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. [8]

 

Section C.2. Areas of Protection in the European Court of Human Rights: The Death Penalty (Coursebook at 641)

 

In May 2002, the European Convention added Protocol 13 to the already existing Protocol 6 on the death penalty.  Protocol 13 abolishes the death penalty in all circumstances, including in times of war. It came into force on January 7, 2003, and has been ratified by the following 24 states: Andorra, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Georgia, Hungary, Ireland, Liechtenstein, Lithuania, Malta, Portugal, Romania, San Marino, Serbia and Montenegro, Slovenia, Sweden, Switzerland, Ukraine, and the United Kingdom.

 

Note 2. The Vienna Convention on Consular Relations (Coursebook at 644)

 

Another case against the U.S. challenging the impending execution of 52 Mexican nationals because they had failed to receive their rights to be informed of consular assistance under the Vienna Convention on Consular Relations. [9]  Mexico sought to invalidate the convictions and to retry the cases. It also requested that the court require the U.S. to adhere to the convention in future such cases. [10]  The United States argued that the case is too great an intrusion into the criminal justice systems in the states of the U.S. The primary issue in the case was not whether there was a violation of the Vienna Convention on Consular Relations but what the appropriate remedy should be. The U.S. official position before 2001 was that an apology was sufficient remedy. After an ICJ decision that violations require “review and reconsideration,” the United States took the position that it has complied with that ruling in cases including Mr. Torres’, by encouraging governors to consider Vienna Convention claims as part of clemency proceedings.

 

On March 31, 2004, the Court decided in favor of the Mexican claim, but declined to void any convictions. [11]  It found that the United States is obligated “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals . . . by taking account of the violation of the rights set forth in Article 36 of the Convention . . ..”  The court ruled that U.S. courts may not rely on procedural default as a reason for refusing to reconsider convictions and sentences. The ICJ also rejected the U.S. contention that raising Vienna Convention issues in state clemency proceedings constitute a sufficient relief. The ICJ suggested that states add a Vienna Convention notice to parallel the warning required by Miranda v. Arizona, 384 U.S. 436 (1966).

Note 4. U.S. Observer Status at the Council of Europe (Coursebook at 644)

 

In October 2003, the Parliamentary Assembly of the Council of Europe found that Japan and the USA were violating their obligations as observer states at the Council of Europe by continuing to employ the death penalty. [12]  Referring to similar findings made in its resolution [13] and recommendation [14] of 2001, the Assembly recommended that the Committee of Ministers “intensify its dialogue on the abolition of the death penalty … especially as it is becoming increasingly difficult for the Council of Europe to accept that observer states make use of the death penalty.” [15]  The Assembly also recommended that the Committee of Ministers take effective measures to enforce previous resolutions and recommendations and establish, at a minimum, a requirement that observer states show a willingness to engage in dialogue on the subject of the death penalty.  This last recommendation was aimed at the United States, which had refused to engage in any discussion of the issue, either at the diplomatic or parliamentary level. The Committee of Minister’s Deputies received the Assembly’s recommendations and resolved to pass them on to the respective governments and to the Steering Committee on Human Rights by December 2003. [16]

 

Section C.3. Areas of Protection in the European Court of Human Rights: The Death Penalty (Coursebook at 641)

 

Note 2. Corporal Punishment

 

As of 2001, 10 countries in the world have banned all forms of corporal punishment of children in all circumstances.  They are: Austria, Croatia, Cyprus, Denmark, Finland, Germany, Israel, Latvia, Norway and Sweden. [17]

 

Section D.1. Remedies in the European Court of Human Rights: Bringing a Case (Coursebook at 647)

 

In May 2004, the Council of Europe’s Committee of Ministers is likely to adopt Protocol No.14, which will amend the European Convention on Human Rights. [18]  One of the aims is to improve the filtering capacity of the court so as to relieve the workload of the registry and the judges.  The proposed changes include creating a layer of adviser-rapporteurs who would do much of the initial examination and determination of cases to filter out the more than 90% of inadmissible applications.  Another proposal that has caused some concern among human rights NGO’s is the addition of new admissibility criteria.  As of March 2004, the Steering Committee on Human Rights had reached agreement on several proposals: Friendly Settlements will be considered at all stages of proceedings, not only after a determination of admissibility; judges of the court will serve a single nine-year term rather than six years with a possibility of re-election for another six years; manifestly well-founded cases, where the case law of the court is clear, will be given an expedited hearing. [19]

 

Notes for the guidance of persons wishing to apply to the European Court of Human Rights are available at <http://www.echr.coe.int/Notesfor%20guidanceApplicants/NoticeENG.pdf> (last visited March 17, 2004). Under Rule 47 of the Court, the application must contain:

a brief summary of the facts;

which convention rights the applicant believes have been contravened;

a statement of the domestic remedies used by the applicant;

a list of all official national court decisions in the case;

and summaries and attached copies of the full decisions.

 

The Explanatory Note for persons completing the Application form under Article 34 of the Convention, is available at <http://www.echr.coe.int/Explanatory%20Notes/NoteENG.pdf> (last visited March 17, 2004). The application form is available at <http://www.echr.coe.int/Application%20forms/Formule-bil1.pdf> (last visited March 17, 2004)

 

Admissibility of Complaints by Applicants not resident in, nor nationals of a Member State (Coursebook at 648)

 

 Article 1 of the European Convention limits the responsibility of the member states to ensuring Convention rights only for persons falling within their jurisdiction.  In a 2001 case brought by Serb victims of the NATO bombing of a radio station, the court addressed the issue of whether the Serb applicants came within the jurisdiction of the respondent NATO states under Article 1. [20]  The court ruled the application inadmissible, finding that the meaning of “jurisdiction” under Article 1 is essentially territorial. The court decided that any exercise of extra-territorial jurisdiction is limited by accepted doctrines of international law and, in particular, the consent of the state on whose territory such jurisdiction is exercised. The court outlined the circumstances under which it would admit a case based on a member state’s extra-territorial jurisdiction. Referring to the case of Cyprus v. Turkey, [21] the court ruled that where a state exercises effective control over a territory, its actions in that territory fall under its jurisdiction within the meaning of Article 1. [22]  The court found no such effective control in the NATO bombing case. In its conclusion, the court limited its primary obligation “to having regard to the special character of the Convention as a constitutional instrument of European public order . . .. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.” [23]

 

Committee of Ministers:  Supervision of ECHR Judgments (Coursebook at 649)

 

 Loizidou v. Turkey (Article 50) provides an example of how difficult and time consuming the supervision process can be. [24]  The award of just satisfaction was given in July 1998, ordering the Turkish government to pay the Cypriot applicant, within three months, 300,000 Cypriot pounds for pecuniary damages, 20,000 Cypriot pounds for non-pecuniary damages, and costs and expenses. The first resolution of the Committee of Ministers came in October 1999, deploring the fact that Turkey had not yet complied with the judgment and urging compliance. [25]  Only in December 2003, 10 interim resolutions later, was the Committee of Ministers able to declare that its supervision of the judgment was complete when the Turkish government paid the full amount of the award on December 2, 2003.

 

Resolutions of the Committee of Ministers on past and continuing supervision of ECHR judgments can be found at <http://wcm.coe.int/ViewDoc.jsp?id=35403&Lang=en> (last visited March 24, 2004).

 

Note 2. The European Commissioner for Human Rights (Coursebook at 649)

 

 The Council of Europe created the post of Commissioner for Human Rights in 1999. Alvaro Gil-Robles is the present Commissioner elected by the Parliamentary Assembly with a mandate to promote awareness of and respect for human rights in member states. [26]  The Commissioner is also empowered to identify possible shortcoming in human rights law and practice, including initiating investigations and fact-finding missions. The role has no legal power to compel testimony or require reports from member states.

 

Further Reading

 

Dinah Shelton, The Boundaries Of Human Rights Jurisdiction In Europe, 13 Duke J. Comp. & Int'l L. 95 (2003).

 

Section F.1. Human Rights Law in Europe Apart from the European Convention:   The European Union (Coursebook at 660)

 

 The European has added 10 new member countries: the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, and Slovakia.

 

 The proposed Protocol 14 to the European Convention on Human Rights would make several amendments to the treaty to allow the EU as an organization to accede to the treaty.  See Section D1 above for more information on Protocol 14.

 

Section F.3. Human Rights Law in Europe Apart from the European Convention:   The Framework Convention for the Protection of National Minorities  (Coursebook at 666)

 

 The Framework Convention for the Protection of National Minorities [27] is the first multilateral treaty on the protection of national minorities in general. Opened for signature to Council of Europe member states, it entered into force on February 1, 1998, and protects the rights of national minorities to freedom of peaceful assembly, freedom of association, expression, thought, conscience, and religion. It also protects the rights of national minorities to use their languages, receive educational opportunity, and benefit from trans-frontier co-operation for national minorities with populations in different contracting states. The Framework Convention established a secretariat, which supports the work of the Advisory Committee. The Advisory Committee, under the supervision of the Committee of Ministers, receives the required state reports and adopts opinions on the measures taken by states to implement the Convention. The Framework Convention does not provide an individual or group complaint mechanism.

For further information on national minorities and the Council of Europe, see <http://www.coe.int/T/E/Human_Rights/Minorities/> (last visited March 24, 2004).

 


 

[1] Statute of the Council of Europe available at <http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm> (last visited February 23, 2004)

[2] Case Of I. v. The United Kingdom, (2003) 36 E.H.R.R. 53, _ Eur. Ct. H.R. (2002) (Application no. 25680/94) at ¶ 71, available at <http://www.echr.coe.int/Eng/Judgments.htm> (last visited March 24, 2004)

[3] Id. at ¶ 71

[4] Id. at ¶ 58.

[5] Id. At ¶ 61.

[6] Id. at ¶ 65.

[7]  (2003) 37 E.H.R.R 51, _ Eur. Ct. H.R. (2003) (Application no. 35968/97)

[8] Lawrence v. Texas, 123 S.Ct. 2472, 2481 (2003)

[9] Avena and other Mexican Nationals (Mexico v. United States of America), 2003 I.C.J. 2 (Provisional Measures, Order of February 5).

[10] Mexico Awaits Hague Ruling on Citizens on Death Row” New York Times, January 16, 2004

[11] Avena and other Mexican Nationals (Mexico v. United States of America), 2004 I.C.J. _ (Judgment) available at <http://212.153.43.18/icjwww/idocket/imus/imusframe.htm> (last visited March 31, 2004). 

[12] Resolution 1349 (2003) available at <http://assembly.coe.int> (last visited March 24, 2004)

[13] Resolution 1253 (2001) available at <http://assembly.coe.int> (last visited March 24, 2004)

[14] Recommendation 1522 (2001) available at <http://assembly.coe.int> (last visited March 24, 2004)

[15] Recommendation 1627 (2003) available at <http://assembly.coe.int> (last visited March 24, 2004)

[16] CM/Del/Dec (2003) 856/3.1E, 16 October 2003 available at <http://wcm.coe.int/rsi/CM/index.jsp> (Last visited March 24, 2003)

[17] Ending Corporal Punishment of Children: Making it Happen, Save the Children, September 2001, available at <http://www.crin.org/docs/resources/treaties/crc.28/SC-UK-ES.pdf> (last visited March 24, 2004)

[18] Briefing and Invitation to a Debate on Proposals to Reform the European Court of Human Rights at the Council of Europe, Strasbourg, Thursday 29 January 2004, (AI Index no. IOR 61/004/2004) Amnesty International, January 26, 2004, available at <http://web.amnesty.org/library/Index/ENGIOR610042004?open&of=ENG-315> (last visited March 24, 2004)

[19] Amnesty International’s Comments on the Interim Activity Report: Guaranteeing the Long-Term Effectiveness of the European Court of Human Rights, (AI Index no. IOR 61/005/2004) Amnesty International, February 1, 2004, available at <http://web.amnesty.org/library/Index/ENGIOR610052004?open&of=ENG-312> (last visited March 24, 2004)

[20] Bankovic, Stojadinovic, Stoimenovski, Joksimovic and Sukovic v. Belgium, The Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, The Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, Eur. Ct. H.R. (2001) (Application no. 00052207/99) <http://www.echr.coe.int/Eng/Judgments.htm> (last visited March 24, 2004)

[21]  (2002) 35 E.H.R.R. 30, _ Eur. Ct. H.R. 2001 (Application no. 25781/94) available at <http://www.echr.coe.int/Eng/Judgments.htm> (last visited March 24, 2004)

[22] Bankovic et al. v. Belgium et al.  at ¶ 70.

[23] Id. at ¶ 80.

[24] (1998) 26 E.H.R.R CD5, Eur. Ct. H.R. (1998) (Applicant no. 00015318/89) available at <http://www.echr.coe.int/Eng/Judgments.htm> (last visited March 24, 2004)

[25] Interim Resolution DH(99) 680, Concerning The Judgment of the European Court of Human Rights of 28 July 1998 In the Case of Loizidou Against Turkey, available at <http://cm/coe.int/ta/res/xh/1999/600-899/99xh680.htm> (last visited March 24, 2004)

[26] The Commissioner’s website is at <http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/> (last visited March 2004)

[27] Framework Convention for the Protection of National Minorities, CETS 157, entered into force February 1, 1998, full text available at <http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm> (last visited March 24, 2004)

 



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