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LX5634 European Systems of Human Rights Study Guide and Seminars

LX5634 European Systems of Human Rights Study Guide and Seminars

Academic Year 2021-22

15 Credits

Aims of the module

- To provide a detailed overview of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) and the other European mechanisms of human rights protection;

- To provide a detailed overview of the Charter of Fundamental Rights of the European Union and the relationship between the Court of Justice of the European Union and the ECtHR.

- To study and assess the development and impact of the ECHR as well as other European instruments on human rights;

- To examine the implementation and enforcement of the ECHR and the other European human rights instruments;

- To evaluate the efficacy of the ECHR and other mechanisms of human rights protection and recommend strategies for improvement.

Learning outcomes

Upon successful completion of the module you should be able to demonstrate the following:

Knowledge and Understanding of

- content and enforcement strategies of the ECHR

- content of the Charter of Fundamental Rights of the European Union

- the interpretation and application of the ECHR by the ECtHR: margin of appreciation, living instrument and proportionality

- other Council of Europe instruments and other European mechanism of human rights protection

Cognitive Skills

- Assess and evaluate the strengths and weaknesses of the ECtHR and its interpretive practice

- Examine critically current developments in relation to European instruments and mechanisms of human rights protection

- Identify current and future challenges for the European mechanisms of human rights protection

Other Skills and Attributes (Practical/Professional/Transferable)

- Demonstrate an ability to research, discuss and analyse relevant sources and materials

- Demonstrate an ability to produce cogent written arguments

Session 1: 4 Oct 2021: Introduction to European Systems of Human Rights Protection: Background, protected rights, enforcement machinery.

Session 2: 11 October 2021: The relationship between the ECHR and the Charter of Fundamental Rights. Interaction between the ECtHR and the CJEU.

Session 3: 18 October 2021: Article 2 ECHR: The right to life.

Session 4: 25 October 2021: Article 3 ECHR: Prohibition of torture.

Reading week: No seminar/no lecture has been scheduled.

Session 5: 8 November 2021: Common Limitations on Rights: Articles 8-11 ECHR, the principle of proportionality, the margin of appreciation.

Session 6: 15 November 2021: Article 10 ECHR: Freedom of expression.

Session 7: 22 November 2021: Article 9 ECHR: Freedom thought, conscience and religion.

Session 8: 29 November 2021: Article 8 ECHR: The right to respect for private and family life. Summary.

All course participants are expected to attend online classes regularly, as those who fail to attend classes normally get lower marks than those who do attend, and actively participate. It is in class where course participants learn subject matter and skills that they will be assessed on and when writing references members of staff often comment on a participant’s performance in classes. If you miss classes due to unforeseen circumstances or illness, please contact the module leader.

Recommended reading

  • Bernadette Rainey, Pamela McCormick, and Clare Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights, (Oxford University Press, 8th edition, 2021)

Alternatively

  • David Harris, Michael O`Boyle, Edward Bates, and Carla Buckley, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (Oxford University Press, 4th edition, 2018),

Further reading

  • Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press, 2013). You can access this book from home via the library webpage (e-book)
  • Alastair Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (Oxford University Press, 3rd edition, 2012)
  • William A Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press, 2015)
  • Philip Leach, Taking a Case to the European Convention on Human Rights (Oxford University Press, 4th edition, 2017)

Key instruments

The following instruments can be downloaded at: http://hrlibrary.umn.edu/instree/auoz.htm.

The European Convention on Human Rights (ECHR) and its protocols are also available      at:                           http://www.echr.coe.int/pages/home.aspx?p=basictexts http://www.coe.int/en/web/conventions/full-list/-/conventions/webContent/7435985

[European] Convention for the Protection of Human Rights and Fundamental Freedoms, [European Convention on Human Rights – ECHR],

ETS 5, 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended, http://www.echr.coe.int/Documents/Convention_ENG.pdf

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS 9, 213 U.N.T.S. 262, entered into force May 18, 1954.

Protocol No. 2 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS 44, entered into force Sept. 21, 1970.

Protocol No. 3 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS 45, entered into force Sept. 21, 1970.

Protocol No. 4 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS 46, entered into force May 2, 1968.

Protocol No. 5 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS 55, entered into force Dec. 20, 1971.

Protocol No. 6 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS 114, entered into force March 1, 1985.

Protocol No. 7 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS 117, entered into force Nov. 1, 1988.

Protocol No. 8 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 118, entered into force Jan.1, 1990.

Protocol No. 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS No. 140, Rome, 6.XI.1990.

Protocol No. 10 to the Convention for the Protection of Human Rights and Fundamental Freedoms,

(ETS No. 146), Strasbourg, 25.III.1992.

 

Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby,

ETS No. 155, Strasbourg, 11.V.1994.

Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms,

ETS No. 177, Rome,4.XI.2000.

 

Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances,

ETS No. 187,Vilnius, 3.V.2002.

 

Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, ETS No. 194, Strasbourg, 13.V.2004.

Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, Council of Europe Treaty Series (CETS) - No. 213, Strasbourg, 24.VI.2013,

http://www.echr.coe.int/Documents/Protocol_15_ENG.pdf

Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, Council of Europe Treaty Series (CETS) - No. 214,

 

Strasbourg, 2.X.2013, http://www.echr.coe.int/Documents/Protocol_16_ENG.pdf

European Social Charter,

ETS No. 35, 529 UNTS 89, Turin, 18.X.1961.

Protocol Amending the European Social Charter, ETS No. 142, Turin, 21.X.1991.

Additional Protocol to the European Social Charter, ETS No. 128, Strasbourg, 5.V.1988.

Additional Protocol to the European Social Charter Providing for a System of Collective Complaints,

ETS No. 158, entered into force January 7, 1998.

European Social Charter (revised),

ETS No. 163, 2151 UNTS 279, entered into force January 7, 1999.

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,

E.T.S. 126, entered into force Feb. 1, 1989.

Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ETS No. 151, Strasbourg, 4.XI.1993.

Protocol No. 2 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ETS 152, Strasbourg, 4.XI.1993.

Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems,

ETS No. 189, Strasbourg, January 28, 2003.

Convention on contact concerning children, ETS No. 192, Strasbourg, 15.V.2003.

Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research,

ETS No. 195, Strasbourg, January 25, 2005.

Council of Europe Convention on the Prevention of Terrorism, ETS No. 196, Warsaw, 16.V.2005.

Council of Europe Convention on Action against Trafficking in Human Beings, ETS No. 197, Warsaw, 16.V.2005.

European Convention on Social and Medical Assistance, ETS No. 14, Paris, 11.XII.1953.

Council of Europe Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds from Crime and on the Financing of Terrorism, ETS No. 198, Warsaw, 16.V.2005.

European Committee of Ministers, Guidelines on human rights and the fight against terrorism (2002).

European Committee of Ministers, Form for reports to be submitted in pursuance of the revised European Social Charter (2001).

Council of Europe Framework Convention for the Protection of National Minorities 1995, 2151 UNTS 246; ETS 157,

http://www.ecml.at/Portals/1/documents/CoEdocuments/FCNM_ExplanReport_en.doc.pdf

  • You should be prepared to participate in seminars and participate in discussions. You may be required to present your answer in class.
  • When case-law is part of your reading, you should read the relevant case-law before the seminar and make notes.
  • You are advised to read the recommended materials in order to develop your knowledge, research and critical skills. As a postgraduate student you will expected to know how to find the relevant materials.

*** Please liaise with the Library & the ASK service for additional advice on research skills ***

Human rights journals of interest to you include:

  • European Human Rights Law Review (EHRLR)
  • European Journal of International Law (EJIL)
  • Human Rights Law Review (HRLR)
  • Human Rights Quarterly (HRQ)
  • Human Rights Law Journal (HRLJ)
  • International and Comparative Law Quarterly (ICLQ)
  • International Human Rights Law Review (IHRLR)
  • Leiden Journal of International Law (LJIL)
  • Netherlands Quarterly of Human Rights (NQHR)
  • The International Journal of Human Rights

And also, American International Law & International Human Rights Law journals – such as:

  • American Journal of International Law (AJIL)
  • Columbia Human Rights Law Review
  • Harvard Human Rights Law Journal
  • The Yale Journal for International Law

All these journals can be found on various research databases (e.g. Westlaw.Uk, Hein online). You can also locate directly journal articles on-line, go to the E-Journals Gateway on the Brunel Library website.

** Apart from legal periodicals and databases, please use the Council of Europe’s websites for your research **

European Court of Human Rights

It is of crucial importance that you know how to find the Court’s case-law on the database of the Court at: http://hudoc.echr.coe.int

*** In order to have a good overview of the leading cases in each subject, you may also wish to have a look at the factsheets of the Court available at: http://www.echr.coe.int/Pages/home.aspx?p=press/factsheets

*** Summaries of judgments and press releases are also available on HUDOC, under ‘related documents’ in each case.

This modular block is assessed by [3500 words coursework]

The coursework publication schedule is available on the TPO page on Blackboard Learn at the start of each academic year. The Coursework questions are released to course participants on the TPO page on Blackboard Learn.

Plagiarism: “To take and use as one’s own the thoughts, writings or inventions of another” (Oxford English Dictionary) – Two elements:

  1. Taking another’s work
  2. Using the work as your own

Three types of plagiarism (intentional or unintentional):

  1. Intra-corpal plagiarism – for example, from another student on the same course
  2. Extra-corpal plagiarism – for example, from a web page, book or journal
  3. Autoplagiarism – for example, submitting a previous essay or article as new work. Includes ’essay banks’. LECTURERS CAN TELL!!

• Knowledge of the field/previous work submitted

• Student writing style

• Detection tools

It is important you understand the rules and regulations with regards to plagiarism and that you reference your coursework appropriately. More information and referencing guidance is available in the College Student Handbook/Teaching Matters/Referencing.

 Coursework must be submitted online via WiseFlow, as per the Department’s Coursework Submission Policy and Procedure, available in the College Student Handbook. Guidance on presentation and word count is also available in the handbook. We will not accept submission of coursework via email or in person, or by any other means. Any coursework not submitted on WiseFlow will be deemed to have not been submitted – this is a strict University policy.

You must ensure that you upload your file in the correct format and use the Department’s electronic coversheet. It is your responsibility to ensure you have submitted your work correctly. You are able to review and check your submission and attachments on Blackboard Learn. If you have any concerns, or if you require your submission to be returned to you, please contact the TPO who will be able to help you.

The late submission policy has changed as of September 2016. How ‘late coursework’ is handled and who to get in contact with is detailed in the College

Student Handbook in the ‘Late Submission Policy’ and ‘Mitigating Circumstances’ sections: College Student Handbook/Assessment and Award/Late submission policy

Brunel Law School will normally provide written feedback on your coursework. The estimated date of feedback release is noted on the coursework publication schedule, available on the TPO page/ on WiseFlow. Students will be notified by email from the TPO as soon as feedback is ready for student collection. Additional feedback can be obtained from the marker by arranging an individual appointment with them during their office hours. Generic feedback will be provided in class. 

A full list of the Departments academic staff profiles and contact details can be found online. It is useful to note that Brunel staff email addresses usually use the format of: [email protected] Academic staff will normally respond to student emails.

During term time, all academic staff have feedback and consultation hours for personal tutees and for students taking their modules. These will normally be posted on the academic member of staff`s door and published on the TPO page on Blackboard Learn. Students may use these hours to follow up aspects of the modular/study or assessment block, or to discuss their studies. You can go to an office hour on your own or in a small group.

Out of term time, academic staff are still available for discussions and meetings (for personal tutees and for Dissertation tutees), but often work from home or are on annual leave. Therefore, it is advisable to contact them by email to arrange an appointment.

More information on academic support can be found in the student handbook: College Student Handbook/Teaching Matters/Academic Support

Outline of Seminars

Session 1: 5 October 2020: Introduction to European Systems of Human Rights Protection: Background, protected rights, enforcement machinery

I. Background

A. ECHR

The Convention for the Protection of Human Rights and Fundamental Freedoms, widely known as the European Convention on Human Rights (ECHR), was opened for signature in Rome on 4 November 1950 and came into force on 3 September 1953. It was the first instrument to give effect to some rights declared in the Universal Declaration of Human Rights (UDHR) and make them legally binding. The ECHR has been ratified by the 47 member states of the Council of Europe, (28 of which are Member States of the European Union) with the total population of over 800 million people, http://www.coe.int/en/web/about-us/our-member-states. The current political mandate of the Council of Europe includes protecting human rights, pluralist democracy, and the rule of law.

B. The Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union protects the fundamental rights of everyone living in the European Union (EU), even though some Charter rights are specifically reserved to EU citizens (Chapter V). It was introduced to bring consistency and clarity to the rights established at different times and in different ways in individual EU Member States.

The Charter sets out the full range of civil, political, economic and social rights based on:

- the fundamental rights and freedoms recognised by the European Convention on Human Rights

- the constitutional traditions of the EU Member States, for example, longstanding protections of rights which exist in the common law and constitutional law of the UK and other EU Member States

- the Council of Europe`s Social Charter

- the Community Charter of Fundamental Social Rights of Workers, and

- other international conventions to which the EU or its Member States are parties

The Charter became legally binding on EU Member States when the Treaty of Lisbon entered into force in December 2009.

II. Rights protected

A. ECHR

The ECHR protects several rights including the right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, and prohibition of discrimination.

Since its adoption in 1950 the ECHR has been amended several times and supplemented with many rights by the First, Fourth, Sixth, Seventh, Twelfth, and Thirteenth Protocols to the Convention that are binding upon those states that have ratified them. Not all parties to the ECHR have accepted the optional protocols. The rights protected by additional protocols to the Convention include protection of property, right to education, right to free elections, prohibition of imprisonment for debt/contractual obligation, freedom of movement, right of a national not to be expelled from and enter a state’s territory, freedom of aliens from collective expulsion, abolition of the death penalty, and general prohibition of discrimination.

B. Charter of Fundamental Rights of the European Union

The Charter contains rights that are also protected by the ECHR, such as right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life. However, it also contains rights that are not protected by the ECHR, such as the right to asylum (Article 18), the rights of the child (Article 24), integration of persons with disabilities (Article 26). Moreover, it contains rights that are only protected by Additional Protocols to the ECHR, which have not been signed by every signatory state to the ECHR, such as the right to property (Article 17 Charter of Fundamental Rights; Article 1 Additional Protocol no 1 to the ECHR) or the prohibition of collective expulsions (Article 19(1) Charter of Fundamental Rights; Article 4 Additional Protocol no. 4 to the ECHR).

III. Enforcement Machinery - ECHR

There have also been other Protocols (eg Eleventh, Fourteenth, Fifteenth, Sixteenth) that have amended the ECHR enforcement machinery. To ensure the observance of the obligations undertaken by the State Parties, the European Court of Human Rights (ECtHR) in Strasbourg, France, was set up and began operating in 1959. It’s a permanent Court composed of full-time judges (since 1 November 1998). It deals with individual and inter-State petitions/applications, http://www.echr.coe.int/Pages/home.aspx?p=home

Article 33 ECHR: Inter-State cases

‘Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party’.

Article 34 ECHR: Individual applications

‘The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.

The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’

Admissible applications are resolved either by friendly settlement or full adjudication of the merits by Chambers of 7 judges or a Grand Chamber of 17 judges where the application raises ‘a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance’ ECHR, Article 43(2).

The Court’s jurisprudence (case-law) has contributed to the development of the global definition and understanding of the substantive content of the rights it protects. In the period 1959-2016 the Court delivered over 19,000 judgments.

See European Court of Human Rights, Annual Report 2016, http://www.echr.coe.int/Documents/Annual_report_2016_ENG.pd

Object and Purpose of the ECHR

Article 31(1) Vienna Convention on the Law of Treaties:1 ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’

1 Done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331

The object and purpose of the ECHR is ‘the protection of individual human beings’2 and the maintenance and promotion of ‘the ideals and values of a democratic society’.3 In Soering v United Kingdom,4 the Court has stated that:

‘In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms.5 Thus, 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.6 In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with "the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society"’7.

Recommended reading

Further reading

  • William A Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press, 2015) 1-50.


87.
2 Soering v United Kingdom, (App 14038/88), 7 July 1989, Series A No 161, (1989); 11 EHRR 439, para

3 Kjeldsen, Busk Madsen, and Pedersen v Denmark, (Apps 5095/71, 5920/72, and 5926/72), 7 December 1976, Series A No 23, (1979-80) 1 EHRR 711, para 53.

4 Soering v United Kingdom, (App 14038/88), 7 July 1989, Series A No 161, (1989); 11 EHRR 439,

para 87.

5 See the Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 90, § 239.

6 See, inter alia, Artico v Italy, (App 6694/74), 13 May 1980, Series A No. 37, p. 16, § 33;(1981) 3 EHRR

1.

7 Kjeldsen, Busk Madsen, and Pedersen v Denmark, (Apps 5095/71, 5920/72, and 5926/72), 7 December 1976, Series A No 23, (1979-80) 1 EHRR 711, para 53

  • Tyrer v United Kingdom, (App 5856/72), 25 April 1978, Series A No 26, (1979-

80) 2 EHRR 1, http://hudoc.echr.coe.int/eng?i=001-57587

Seminar questions

  1. Why does the European Convention on Human Rights (ECHR) protect predominantly civil and political rights rather than economic, social and cultural rights (eg the rights to work, just and favourable conditions of work, social security, food, water, housing, health, and participation in cultural life) as well as group rights (e.g. right to development, peace, clean/healthy environment)?
  2. What is the purpose of the Additional Protocols?
  3. What are the admissibility criteria for an individual application?
  4. Is there an individual complaint mechanism at the EU level?
  5. How can an individual complain about an infringement of Charter rights?
  6. The ECHR is ‘a living instrument which… must be interpreted in the light of present-day conditions’ Tyrer v United Kingdom, (App 5856/72), 25 April 1978, Series A No 26, (1979-80) 2 EHRR 1 para 31. Discuss.

Session 2: 11 October 2021: The relationship between the ECHR and the Charter of Fundamental Rights of the European Union and the interaction between the ECtHR and the CJEU

Recommended reading:

  • L. Glas, J. Krommendijk, From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Courts, Human Rights Law Review, Volume 17, Issue 3, 1 September 2017, Pages 567–587.

CJEU:

  • OPINION 2/13, paras. 153-200.

Further reading:

ECtHR:

  • CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ

v. IRELAND (Application no. 45036/98),

  • CASE OF MICHAUD v. FRANCE (Application no. 12323/11),
  • CASE OF AVOTIŅŠ v. LATVIA (Application no. 17502/07).

Questions:

  1. What is the Bosphorus doctrine?
  2. What are the requirements for a presumption of compliance according to the ECtHR’s case law?
  3. In what circumstances does this presumption not apply?
  4. Why is a respectful relationship between the ECtHR and the CJEU in the interest of both Courts?
  5. Does the ECtHR place itself over the CJEU? Discuss.
  6. Please summarise the CJEU’s Opinion 2/13. How has it affected the relationship between the two courts?
  7. What does the ECtHR’s Avotiņš judgment mean for the application of the Bosphorus doctrine?
  8. Is there an increasing Charter centrism on side of the CJEU?

Session 3: 18 October 2021: The right to life

Article 2 ECHR

  1. Everyone`s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
  2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 2 of the Charter of Fundamental Rights of the European Union

  1. Everyone has the right to life.
  2. No one shall be condemned to the death penalty, or executed.

The right to life is protected in other instruments including Article 3 of the Universal Declaration of Human Rights; Article 6 of the International Covenant on Civil and Political Rights; Article 4 African Charter on Human and Peoples’ Rights.

General Approach to Article 2

McCann and Others v United Kingdom, (App 18984/91), 27 September 1995, Series A No 324, (1996) 21 EHRR 97, http://hudoc.echr.coe.int/eng?i=001-57943, para 147:

‘… as a provision (art. 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15 (art. 15). Together with Article 3 (art. 15+3) of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe… As such, its provisions must be strictly construed’

Death penalty: General principles

In A.L. (X.W.) v Russia, (App 44095/14), 29 October 2015, http://hudoc.echr.coe.int/eng?i=001-158148, the European Court of Human Rights observed:

  1. The Court reiterates its general principles as set out in the case of Al-Saadoon and Mufdhi v. the United Kingdom (no. 61498/08, ECHR 2010):“115. The Court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings”.
  2. Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that Article 2 § 1 provides that “[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. However, as recorded in the explanatory report to Protocol No. 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe (see paragraph 95 above; see also paragraph 96 above). Protocol No. 6 to the Convention, which abolishes the death penalty except in respect of “acts committed in time of war or of imminent threat of war”, was opened for signature on 28 April 1983 and came into force on 1 March 1985. Following the opening for signature of Protocol No. 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required States wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No. 6. All the member States of the Council of Europe have now signed Protocol No. 6 and all save Russia have ratified it.
  3. Protocol No. 13, which abolishes the death penalty in all circumstances, was opened for signature on 3 May 2002 and came into force on 1 July 2003. At the date of adoption of the present judgment, Protocol No. 13 has been ratified by forty- two member States and signed but not ratified by a further three (Armenia, Latvia and Poland). Azerbaijan and Russia are alone in not having signed the Protocol ..
  4. In Öcalan (cited above), the Court examined whether the practice of the Contracting States could be taken as establishing an agreement to abrogate the exception in Article 2 § 1 permitting capital punishment in certain conditions [:]

‘... Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the fortyfour Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment.

... Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment that is no longer permissible under Article 2.’

Having thus concluded that the use of the death penalty except in time of war had become an unacceptable form of punishment, the Grand Chamber in Öcalan went on to examine the position as regards capital punishment in all circumstances: ‘164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace.

165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.’

  1. It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the member States have now signed Protocol No. 13 and all but three of the States which have signed it have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty (compare Soering, cited above, §§ 102-04)

123. The Court further reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi, cited above, § 125). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (see Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and, mutatis mutandis, Soering, cited above, § 111; S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; Bader and Kanbor, cited above, § 42; and Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009).

Recommended reading

Either

  • Bernadette Rainey, Pamela McCormick, and Clare Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights, (Oxford University Press, 8th edition, 2021), pages will be announced.

Or

Further reading

Seminar questions

  1. Article 2 ECHR, the most basic human right of all, places upon States a negative obligation not to take life (refrain/abstain from intentional, unjustified killing by state agents) and a positive obligation to protect the right to life (investigate suspicious deaths e.g. death in custody/forced disappearance and, if required, prosecute the perpetrators of an unlawful killing, and, in certain circumstances, take steps to safeguard the lives of those within the State’s jurisdiction eg prevent the avoidable loss of life). Discuss.
  2. 2.  Does the continuous failure of medical staff to provide a patient with appropriate care and treatment (leading to death) constitute a violation of the right to life under Article 2 ECHR? See Centre for Legal Resources on behalf of Valent

Campeanu       v       Romania,       (App       47848/08),       17       July       2014, http://hudoc.echr.coe.int/eng?i=001-147828

  1. Examine the view that the circumstances in which the deprivation of life may be justified under Article 2 must be ‘strictly construed’.
  2. The abolition of the death penalty is essential for the protection of the right to life and for the full recognition of the inherent dignity of all human beings. Therefore, ‘the death penalty shall be abolished. No one shall be condemned to such penalty or executed’ in all circumstances. Discuss.
  3. ‘Capital punishment (death penalty or judicial execution) has become an unacceptable form of punishment that is no longer permissible under Article 2 ECHR as amended by Protocols 6 and 13 and that it amounts to “inhuman or degrading treatment or punishment” under Article 3’. Critically examine by considering whether:

(i)  the imposition of the death penalty is a violation of the right to life; (ii) the imposition of the death penalty is a violation the right to be free from ‘inhuman or degrading treatment or punishment’? Your answer must refer to relevant case law including:

- Al-Saadoon and Mufdhi v United Kingdom, (App 61498/08), 2 March 2010, para 120 a Chamber of the European Court of Human Rights stated that the wording of Article 2(1) ECHR does not act as bar to interpreting the words ‘inhuman or degrading treatment or punishment’ in Article 3 as including the death penalty.

- A.L. (X.W.) V Russia, (App 44095/14), 29 October 2015, paras 62-66.

Week 4: 25 October 2021 Article 3 ECHR – Prohibition of Torture

Article 3 ECHR

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 of the Charter of Fundamental Rights of the European Union No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Recommended reading:

  • Bernadette Rainey, Pamela McCormick, and Clare Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights, (Oxford University Press, 8th edition, 2021), pages will be announced.

ECtHR:

  • Case of M.S.S. v. Belgium and Greece (application no. 30696/09)
  • Case of Tarakhel v. Switzerland (application no. 29217/12)

CJEU:

  • Joined Cases C-411/10 and C 493/10, N.S. and M.E.
  • Case C-578/16 PPU, C. K. and Others

Questions for discussion:

  1. In its seminal Opinion 2/13 the CJEU held that the EU’s “legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.”8 Discuss.
  2. The President of the CJEU announced in the plenary debate at the closing session of the FIDE Conference 2014 powerfully 8 Opinion 2/13, EU:C:2014:2454, para. 168

“The Court is not a human rights court: it is the Supreme Court of the Union.”9 Discuss.

  1. Are EU Member States obliged to assess each other’s decisions in the context of the Dublin system which is governed by mutual trust and mutual recognition? Please differentiate between the CJEU’s and the ECtHR’s case law.
  2. Has the CJEU changed its approach? Please compare the Joined Cases C-411/10 and C- 493/10, N.S. and M.E. with Case C-578/16 PPU, C. K. and Others.

The material for the next four sessions will be uploaded in due course.


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