CLASS 5.

EUROPEAN PROTECTION OF HUMANN RIGHTS II

EUROPEAN REGIONAL ORGANIZATIONS
- Organization for security and cooperation in Europe
- European union/ EC
- Council of Europe
Council of Europe CoE major human rights treaties
- Convention for the Protection of Human Rights and Fundamental Freedoms , 1950 (1998 )
- European Social Charter , 1961 ( revised 1996)
- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ,
1987
- Framework Convention for the Protection of National Minorities , 1995
PROTOCOL No 14. 2004
Adopted only by 20 member states. However, the system developed, 40 total member states and many cases
per year. It was evident that the curt would not be able to del with all those cases. Three measures were
adopted to increase the capacity of the court. Main changes:
1. Clearly inadmissible („hopeless“) cases: inadmissibility decisions will be taken by a single judge
(increase of the Court's filtering capacity). - No appeal. No communication with the government. No
„national“ judges.
2. Repetitive cases: a series of cases (same structural defect at national level), decided by a committee of
three judges under a simplified summary procedure (judges elected in respect of the state concerned do
not need to be members of the committee) - Pilot judgment procedure: systemic issues – non-
conformity of domestic law
3. New admissibility criterion: the Court could declare inadmissible applications where the applicant has
not suffered a significant disadvantage* provided that "respect for human rights" does not require the
Court to go fully into the case and examine its merits.
FURTHER CHANGES
• Election of judges: non renewable term of office of nine years (so far renewable term of six years)
The goal of the reform is to increase the independence and impartiality of judges. They will not
decide about a case involving their own state.
• Decisions on admissibility and merits: Decisions on the admissibility and the merits of an individual
application can be taken jointly, if ir very clear.
• Commissioner for Human Rights: he or she will have the right to intervene as a third party, by
submitting written comments and taking part in hearings (so far only on invitation by the president of
the Court). Not in favour of state aprties, they are suppose to defend themselves.
– 2017: Intervention in favour of Turkish journalists
– Not on the merits of the case but on thematic and country-specific issues
• Execution of judgments: the Committee of Ministers may ask the Court to interpret a final judgment
in cases when the supervision is difficult.
SIGNIFICANT DISAVANTAGE*
• Article 35/3. New paragraph. Also abput the quality of the national system.
The Court shall declare inadmissible any individual application (…) if it considers that:
 (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal.
The problem is that there might had been a violation, but the Court decides not to examine it, and declined it
because it is not suficienty important if there is not significan disadvantage the court will declared it
inadmisible or to stablish that there has not been any violation. Issue of procedure or merits? Proportionality
assessment?

A.M.Ionescu v. Romania
The claim: 90 euros against a bus company for not providing the promised services. National courts rejected
the claim. ECHR: the amount of the alleged loss (90 euros) and the applicant´s financial situation: for a poor
person the loss of 90 euros could be significant. The complaint is inadmissible (Chamber decision).
Korolev v. Russia
Delay in issuing a new travel passport. The severity of a violation should be assessed taking into account both
the applicant’s subjective perceptions and what is objectively at stake in a particular case. The applicant’s
subjective feeling about the impact of the alleged violations has to be justifiable on objective grounds. The
pecuniary interest involved is not the only element to determine whether the applicant has suffered a
significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle
and thus cause a significant disadvantage without affecting pecuniary interest.
Sylka v poland
Applicant allegedly offended police officers – Article 10 ECHR. The “no significant disadvantage” criterion is
not limited to certain rights, but that its application must take due account of the importance of freedom of
expression and be subject to careful scrutiny, including the contribution made to a debate of general interest
and whether the case involved the press or other news media. The subjective aspect includes not only the
monetary aspect, but also the general interest of the applicant in pursuing the case.
OPEN ISSUES
Are some rights more important than others? For example freedom of scheech than Family life. May an issue
of a trivial nature raise serious questions affecting the application or the interpretation of the ECHR? Relation
to the subsidiarity principle? First place of national courts, then the european one. Duly considered by a
domestic Tribunal.

Rule 61 - 1 Pilot-judgment procedure

1. The Court may initiate pilot judgment procedure and adopt a pilot judgement where the facts of an
application reveal in the Contracting Party concerned the existence of a structural or systemic problem
or other similar dysfunction which has given rise or may give rise to similar applications.
2. (b) A pilot judgment procedure may be initiated by the Court of its own motion or at the request of
one or both parties
3. The Court shall in its pilot judgment identify both the nature of the structural or systemic problem or
other dysfunction as established as well as the type of remedial measures which the Contracting Party
concerned is required to take at the domestic level by virtue the operative provisions of the judgment.
4. The Court may direct in the operative provisions of the pilot judgment that the remedial measures (...)
be adopted within a specified time in mind the nature of the measures required.
5. When adopting a pilot judgment, the Court may reserve the question of just satisfaction (...)
 6. (a) As appropriate, the Court may adjourn the examination of similar applications pending the
adoption of remedial measures (...) (b) The applicants concerned (...) shall be notified as appropriate
of all relevant developments affecting their cases (c) The Count may at any time examined application
where the interests of the proper administration of justice so require
Broniowski v. Poland, 2004
Poland's eastern border had been redrawn in the aftermath of the Second World War. Compensation for Polish
citizens who were repatriated and had to abandon their property situated beyond the Bug River. Polish
national complained that he had not received the compensatory property to which he was entitled. ECtHR:
structural deficiency which denied 80,000 people the peaceful enjoyment of their possessions. Measures -
appropriate legal and administrative measures implementing a property right. Poland passed a new Law in
July 2005 providing for financial compensation. ECtHR: measures effective in practice - more than 200
similar applications struck out in 2007 and 2008 .
Hutten - Czapska v. Poland , 2006
Deficiencies in the rent-control provisions of the housing legislation: restrictions on landlords' rights, ceiling
on rent levels. 100,000 landlords could not even recoup their maintenance costs, let alone make a profit.
Measures: mechanism maintaining a fair balance between the interests of landlords and the general interest of
the community. Poland changed its laws. Landlords could recover the maintenance costs for their property
and make a "decent profit and have a reasonable chance of receiving compensation for past violations of their
property rights".
Greens and M.T. v. the UK, 2010
Blanket ban on voting for convicted prisoners in detention in the UK. Measures: 6 months from the date when
the judgment became final (2011) to introduce legislative proposals for bringing electoral law into line with
the Hirst judgment of 2005. The consideration of 2,000 pending cases against the United Kingdom was
adjourned until September 2013. In September 2013 the ECtHR decided not to further adjourn its proceedings
and to process them in due course. Violation!  „The Court recalls that its role in this area is a subsidiary
onethe national authorities are, in principle, better placed than an international court to evaluate local needs
and conditions and as a result , in matters of general policy , on which opinions within a democratic society
may reasonably differ , the role of the domestic policy - maker should be given special weight ."
.IMPACT OF ECHR JUDGMENTS
More than 90% of cases inadmissible. Just satisfaction (compensation for pecuniary and non-pecuniary
damages) – no strict rules, subject of a specific claim. The finding of violation may in itself constitute just
satisfaction. Costs and expenses: reimbursement of costs and expenses which occurred at the domestic level
and in the proceedings before the Court; cost of legal assistance, court registration fees, travel expenses.
Change of national law
ECHR INTERPRETATION
• Articles 31 of the VCLT.
– good faith
– ordinary meaning - literal interpretation
– systematic interpretation
– object and purpose (teleological interpretation): preamble, subsequent agreement and practice

• Art. 32 VCLT: supplementary means: preparatory work circumstances of the conclusion of the
Treaty.
 • The object and purpose of the Convention as an instrument for the protection of individual human
beings require that its provisions be interpreted and applied so as to make its safeguards practical
and effective. (Soering v. UK)
• The ECHR is a living instrument which must be interpreted in the light of present day conditions .
(Loizidou v. Turkey)
MARGIN OF APPRECIATION
• Relation between national courts and the ECtHR
• It is evident that a certain discretion - a certain margin of appreciation – must be left to the
Government. (Lawless, 1959)
• The doctrine of margin of appreciation is a valuable tool for the interaction between national
authorities and the Convention enforcement mechanism. (Mouvement raëlien suisse v. Switzerland,
2012)
• Better position of the State authorities to give an opinion on the exact content of the requirements of
morals, and the necessity of any restriction.
• But supervision by the ECtHR.

BRIGHTON DECLARATION
Brighton Declaration on the future of the European Court of Human Rights (ECtHR). It was adopted on 20
April 2012 by 47 MS. The jurisprudence of the Court makes clear that the States Parties enjoy a margin of
appreciation in how they apply and implement the Convention, depending on the circumstances of the case
and the rights and freedoms engaged. This reflects that the Convention system is subsidiary to the
safeguarding of human rights at national level and that national authorities are in principle better placed
than an international court to evaluate local needs and conditions. The margin of appreciation goes hand in
hand with supervision under the Convention system. In this respect, the role of the Court is to review whether
decisions taken by national authorities are compatible with the Convention, having due regard to the State’s
margin of appreciation.
PROTOCOL No. 15
At the end of the preamble to the Convention, a new recital shall be added, which shall read as follows:
Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have
the primary responsibility to secure the rights and freedoms defined in this Convention and the
Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory
jurisdiction of the ECtHR.
EUROPEAN CONSENSUS
ECHR as a living instrument. Different realities in MS. Comparative method. Wide margin of appreciation
for MS in the absence of consensus
SAME-SEX COUPLES
- The Court cannot but note that there is an emerging European consensus towards legal recognition of
same-sex couples. Moreover, this tendency has developed rapidly over the past decade.
- Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The
area in question must therefore still be regarded as one of evolving rights with no established consensus,
where States must also enjoy a margin of appreciation in the timing of the introduction of legislative
changes. (Schalk and Kopf v. Austria, 2010)
RELIGIOUS SYMBOLS
- The Court concludes in the present case that the decision whether crucifixes should be present in State-
school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent
State. Moreover, the fact that there is no European consensus on the question of the presence of
religious symbols in State schools speaks in favour of that approach.
- There is, of course, a growing trend towards proscribing the possibility of displaying crucifixes in State
schools - mainly through rulings of the higher national courts - but the number of that have adopted
measures prohibiting the display of crucifixes in public places and the extent of domestic judicial activity
do not allow the Court to presume that a consensus has been reached against displaying them. This is
particularly true if one takes into account that there are a number of States in Europe where the Christian
religion is still the official or predominant religion. (Lautsi v. Italy, GC 2011 ).
BURQA BAN
- The Court thus observes that, contrary to the submission of one of the third -party interveners, there is no
European consensus against a ban. Admittedly, from a strictly normative standpoint, France is very much
in a minority position in Europe: except for Belgium, no other member State of the Council of Europe
has, to date , opted for such a measure.
- It must be observed, however, that the question of the wearing of the full-face veil in public is or has been
a subject of debate in a number of European States. In some it has been decided not to opt for a blanket
ban. In others, such a ban is still being considered. It should be added that, in all likelihood, the question
of the wearing of the full-face veil in public is simply not an issue at all in a certain number of member
States, where this practice is uncommon.
- It can thus be said that in Europe there is no consensus as to whether or not there should be a blanket ban
on the wearing of the full -face veil in public places. (SAS v France)
S.A.S – DISSENTING OPINION
- It is difficult to understand why the majority are not prepared to accept the existence of a European
consensus on the question of banning the full-face. In the Court's jurisprudence, three factors are relevant
in order to determine the existence of a European consensus: international treaty law, comparative law and
international soft law. The fact that 45 out of 47 MS of the CoE, and thus an overwhelming majority, have
not deemed it necessary to legislate in this area is a very strong indicator for a European consensus.

- Even if there might be reform discussions in some of the MS, while in others the practice of wearing full-
face veils is non- existent, the status quo is undeniably clear. Furthermore, as amply documented in the
judgment, the Parliamentary Assembly and the Commissioner for Human Rights of the CoE, as well as
non- governmental organisations, are strongly opposed to any form of blanket ban on full-face veils.

- This approach is fortified by reference to other international human rights treaties, especially the ICCPR
and the CEDAW. Although the Human Rights Committee has not made any pronouncement as regards a
general ban on the wearing of the full-face veil in public, it has concluded, for example, that expelling a
student wearing a hijab from university amounted to a violation of Article 18 the Covenant.
SURVEY OF ACTIVITIES
• The problem of excessive caseload – explosion in the number of cases.
• Pending cases:
– 2006: 66.500, 2007: 79.400, 2008: 97.000, 2009: 119.300,
– 2010: 139.650 (June 2010: Protocol No. 14 enters into force)
– 2011: 151.600, 2012: 128.100,
– 2013: 99.900
– 2015: 64.850
– 2016: 79.750
– 2019: 59.800
– 2020: 62.000