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Posts Tagged ‘European Court of Human Rights’

Interlaken and the Role of the European Court of Human Rights

February 19, 2010 2 comments

This week saw the much anticipated Interlaken Conference on the Future of the European Court of Human Rights (briefing paper), intended to secure workable solutions for the future of the Court. The Court, which started as a part-time court working with a commission, is now full-time and has developed under the recently ratified Protocol No. 14 (which comes into force on 1 June 2010) in order to try to meet the very real challenges of resources and workloads. Those challenges, however, are not entirely resolved by Protocol No. 14 and further work is needed in order to try to ensure the stability and continuing operation of the Strasbourg Court as an important part of Europe’s human rights infrastructure. This raises questions as to what the role of the Court is: is it an adjudicative court that ought to focus mostly on resolving disputes and providing redress, or is it a constitutionalist court? Ought it to be both and, if so, is that a feasible objective? In this post I intend to outline some of the challenges faced by the Court, consider the extent to which this question as to role and function remains unresolved by Protocol No. 14, and consider how this debate might be relevant in the Interlaken process.

The Role of the European Court of Human Rights

The European Court of Human Rights has four main formalised functions to hear inter-state complaints where they arise; to hear individual complaints where they arise and are deemed admissible; to provide Advisory Opinions when requested (Art.47, ECHR); to clarify interpretation of judgments and assess whether judgments are being abided by where requested by a super-majority of the Committee of Ministers (Art.46, ECHR). These are the formal functions of the court, however, and a mere recitation of them or even a detailed analysis of them does not answer the more fundamental question of what role the Court is intended to play.

It is commonly assumed that there is some tension between the Court’s roles as an adjudicative court in individual cases (albeit in a subsidiary manner as complainants must exhaust all domestic remedies first) and its role as a constitutionalist court for the Council of Europe. If the Court is primarily intended to carry out the former role then rules relating to admissibility, remedies, supervision of judgments etc… have an importance that must be jealously guarded. If, however, the Court also, or even primarily, has a constitutionalist role then what is important is not that every individual complainant would have her case heard and adjudicated upon, but rather that judgments of the court would outline and formalise (or ‘harden up’) the constitutionalist principles of the Convention. This kind of role does not require the Court to have particularly open admissibility rules or for every individual complainant to have satisfaction of some kind; rather it requires a more strategic kind of role in terms of case selection (not, one would think, entirely dissimilar to the certiorari decisions of the US Supreme Court [intro]). Read more…

Trafficking as an ECHR Violation – A Crucial European Human Rights Law Development

January 10, 2010 2 comments

On Friday, Jurist reported that the European Court of Human Rights has found trafficking to be a violation of Article 4. The Court’s decision in Rantsev v. Cyprus and Russia is to be greatly welcomed given the prevalence of trafficking in Europe and the importance that trafficking be regarded first and foremost as a human rights issue – not simply a criminal justice matter. (The issue of trafficking in Ireland and the shortcomings of the Irish legal framework in terms of addressing the problems faced by many victims of trafficking has been previously addressed on this blog).

The applicant in Rantsev, Mikhaylovich Rantsev, a Russian national, brought a complaint in relation to the trafficking, and the circumstances surrounding the death, of his daughter in Cyprus. He alleged violations of Articles 2, 3, 4, 5 and 8 of the Convention resulting from the lack of sufficient investigation into the circumstances of the death of his daughter, the lack of adequate protection of his daughter by the Cypriot police while she was still alive and the failure of the Cypriot authorities to take steps to punish those responsible for his daughter’s death and ill-treatment. He also complained under Articles 2 and 4 about the failure of the Russian authorities to investigate his daughter’s alleged trafficking and subsequent death and to take steps to protect her from the risk of trafficking. Finally, he complained under Article 6 of the Convention about the inquest proceedings and an alleged lack of access to court in Cyprus.

The Court held only the complaints under Articles 2, 3, 4 and 5 to be admissible. It ultimately decided that it was not necessary to consider separately the applicant’s complaint under Article 3 of the Convention. The Court ruled that Cyprus had violated Article 2 of the Convention due to its failure to conduct an effective investigation into Ms Rantseva’s death. The Court also found Cyprus to be in contravention of Article 5 of the Convention.

The most interesting element of the decision, however, is the Court’s findings with regard to Article 4 ECHR. Read more…

A, B and C v. Ireland starts today

December 9, 2009 1 comment

A, B and C v. Ireland, the case in which three women will challenge Ireland’s abortion regime before the Grand Chamber of the European Court of Human Rights begins today. It is the first Irish case to be heard by the Grand Chamber since Senator David Norris’ case which resulted in the decriminalisation of homosexuality. The Irish Family Planning Association provides resources here,  I have blogged about the case in some detail here and there is more recent press coverage here, here, here, here, here and here. The ever-objective Irish Examiner deserves special mention for illustrating its coverage with a picture of a baby’s foot.

The issues affecting the three women in A, B and C – many of which are described in Anne Rossiter’s book ‘The Abortion Trail’ – are still very much live. The Crisis Pregnancy Agency recently reported a drop in the – still substantial – numbers of Irish women travelling to the UK for the purposes of abortion, at the same time highlighting the presence in the state of ‘rogue’ pregnancy advisory services designed to dissuade women from terminating their pregnancies. We promise further analysis when the judgment is handed down.

Read more…

Arrest for the purpose of DNA sampling

November 24, 2009 Leave a comment

A report published today by the Human Genetics Commission (HGC) in the United Kingdom, which advises the government in that jurisdiction in relation to genetic issues, contains a claim that police officers deliberately arrest people in order to get DNA samples from them to add to the DNA database. The claim, put forward by an unnamed retired police superintendent, is contained in a report entitled “Nothing to Hide, Nothing to Fear?”.

Obviously, it is difficult to investigate the truth of the claim that persons are being arrested solely for the purpose of obtaining DNA samples where they would not be arrested in other circumstances, and indeed, such a claim has been denied by the Association of Chief Police Officers. However, the Chairman of the HGC, Professor Jonathan Montgomery, has admitted that there is some evidence to substantiate the allegation. Professor Montgomery has also suggested that the DNA database in the UK has suffered from “function creep” since its introduction in 1995, evolving from a database of offenders into a database of suspects. Liberty‘s director of policy Isabella Sankey has also observed the extent of the use currently being made of DNA databases and the manner in which policing decisions can be influenced:

Not only are we stockpiling the most sensitive information of innocents who have never been charged, let alone convicted, we are also creating a perverse incentive for officers to arrest the innocent.

The UK DNA database is the largest of its kind in the world and this is not the first time that it has been the subject of controversy and debate, although Professor Montgomery suggests that there has not been enough public or parliamentary debate on the issue.

Read more…

Lord Kerr on the Relationship between ECtHR and Domestic Courts

November 22, 2009 3 comments

As we noted here, Friday evening saw UCD School of Law host the 13th Memorial John M Kelly Lecture, this year delivered by Lord Kerr; justice of the UK Supreme Court. The lecture, entitled “The Conversation between the European Court of Human Rights and National Courts: Dialogue or Dictation” was a wide ranging and extremely interesting one and the audience ranged from sitting and retired justices of the Supreme and High Court to undergraduate students in the School.

Lord Kerr was primarily concerned with the implications for courts in Ireland and the UK (although, primarily the UK), of Europen Court of Human Rights decisions that appeared to lay down a universal rule for the member states of the Council of Europe but where implementation of that rule caused substantial practical difficulties in the domestic state. The focus on Ireland and the UK had two bases: firstly these two jurisdictions are the only common law jurisdictions in the Council of Europe; secondly, s. 2 of the Human Rights Act 1998 and s. 4 of the ECHR Act 2003 require the courts, respectively, to take ECtHR jurisprudence “into account” (HRA 1998) or to take “judicial notice” and “due account” thereof (ECHR Act 2003).

Lord Kerr identified a number of reasons why any conception of Convention caselaw as ‘binding’ (if that was how these statutory provisions were interpreted) might be problematic. 1: Where there is a written constitution there may be tensions between constitutional supremacy and Convention caselaw. 2: Because of the ECtHR’s commitment to dynamic/evolutive interpretation of the Convention there is strict concept of precedent in the Strasbourg court, which may make things like the contemporaneousness of a judgment important in considering whether it ought to be binding or not; 3: Where a domestic court considers itself bound to follow a Strasbourg decision serious practical difficulties may flow from the implementation of that decision. Read more…

JM Kelly Memorial Lecture: Friday 20 November 2009

November 20, 2009 1 comment

This Friday evening the UCD School of Law will hold its 13th annual JM Kelly Memorial Lecture, this year delivered by Lord Brian Kerr: Justice of the UK Supreme Court and formerly Lord Chief Justice of Northern Ireland. The title of the lecture is The Conversation between the European Court of Human Rights and National Courts: Dialogue or Dictation. Lord Kerr has indicated that the lecture will focus on some recent and controversial decisions of the superior courts of the United Kingdom in order to explore the tensions between national courts and the ECtHR.

The lecture will take place in the Clinton Auditorium, UCD at 6.00 pm on Friday evening (20 November 2009) and all are welcome.

The JM Kelly Memorial Lecture commemorates and honours the late John Maurice Kelly, Professor of Roman Law and Jurisprudence in UCD who contributed so much to the development of the School of Law and to legal scholarship in Ireland and further a field. This lecture series also serves as a memorial to John Maurice Kelly’s distinguished contribution, which he made as a jurist, parliamentarian and public servant to the legal, academic and political culture of the Irish State. Everyone educated in law in this jurisdiction has learned from his magnificent The Irish Constitution (now in its 4th edition and edited by Gerard Hogan and Gerry Whyte) and A Short History of Western Legal Theory, both of which continue to be leading texts in their fields.

You can find out about the illustrious JM Kelly lecturers whose ranks Lord Kerr will join on Friday evening here.

Please note: I originally posted this as starting at 6.45pm. It will, in fact, commence at 6 o’clock.

Italy, Tunisia and the European Court of Human Rights

September 15, 2009 Leave a comment

ECtHRVia Statewatch comes news that the European Court of Human Rights is still battling with the Italian government’s penchant for ignoring interim measures under which the Court provides that applicants are not to be transferred to Tunisia pending the hearing of their Article 3 (torture, inhuman and degrading treatment and punishment) claims.

Read more…